THR ran an interesting guest column over the weekend called “Why It’s So Hard to Get the Law to Protect a Good Joke” that explores intellectual rights and the Copyright Act in the context of joke theft accusations between comedians, pointing out the craft of comedy as some of the most difficult material to protect due to its always-evolving nature. From the article:
Although comedians may start with a written work – a script – the performance of the work rarely occurs without deviation. As a result, copyright may not issue because the work of authorship is not “fixed” in the manner necessary to establish a basis for protection. Stated differently, it is not possible to “fix” a performance that involves, for example, audience interaction. Accordingly, the only protection that may exist for the writer/performer is the right to protect that singular performance, but not the right to stop others from taking and then performing the content. As a result, the joke thief may actually prevail.