Jay Leno and NBC Studios are among those suing the author of a series of joke books. "We think there's a very important principle at stake: protecting intellectual property of the comedians," says the plaintiff's attorney.
The author in question is Judy Brown, a comedy teacher and writer who has edited some 19 joke books, with titles like Joke Stew, The Comedy Thesaurus, and Joke Soup.
The books are organized by theme, from "religion" to "refrigerator." One, by comedian Rita Rudner fell under "children" in the book Jokes to Go.
On her HBO special Born to be Mild, the joke went something like this: "You just never know what you're going to get," Rudner said, "little kids on carousels... some were jumping on the horses... afraid of the horses... betting on the horses."
Rudner says she was shocked when she found out that Brown had published many of her jokes in several different books. Rudner is part of the new lawsuit, along with Jay Leno, Jimmy Brogan, and Kathleen Madigan, who are also in the books.
"It's hard to be funny," Rudner says. "And jokes are very difficult things to write and when I think of one I get so excited, and it doesn't happen often. So I want to protect it."
The lawsuit was filed by attorney Theodore Boutrous, who says the books are "just blatant copyright violation," the product of reselling other peoples' work for profit. "These jokes are products of a very careful choice of words," Boutrous says.
Attempts to reach Judy Brown were unsuccessful. The attorney representing her publisher — Andrews McMeel — declined to comment. But intellectual property lawyer David Korzenik says it is likely the defense will argue that the joke books are covered under Fair Use.
That would mean proving — among other things — that Brown created something new or "transformative" in using the jokes. Korzenik says there might also be a battle over whether an isolated joke from a larger performance constitutes a copyrightable work.
And then, he says, there's the history of jokes.
"Jokes are often very derivative of other people's jokes," Korzenik says, "and they may not really be owned by anyone, or they may have a very weak claim to ownership and creativity."
Some in the comedy business, especially those who go back a few years, say "borrowing" material is practically an industry standard.
Sheldon Patinkin, one of the original founders of Second City in Chicago, is perplexed by the litigation.
"Milton Berle published two enormous books of jokes, none of which are his," Patinkin says. "I'm amazed they're suing."
But the plaintiffs in the case view their jokes as their property, an idea that may be gaining popularity.