{"id":40357,"date":"2017-08-10T12:31:42","date_gmt":"2017-08-10T07:01:42","guid":{"rendered":"http:\/\/localhost\/one\/?p=40357"},"modified":"2025-06-13T17:06:19","modified_gmt":"2025-06-13T11:36:19","slug":"copyright-jokes-india-fair-use-infringement-law","status":"publish","type":"post","link":"https:\/\/www.bananaip.com\/intellepedia\/copyright-jokes-india-fair-use-infringement-law\/","title":{"rendered":"Copyrights and Jokes: Father Went to Church: ha ha ha"},"content":{"rendered":"

“Ladies and Gentlemen, the best patent attorney in India is ….None other than Mr. Kan!<\/span>
\nPlease give Mr. Kan a loud applause.”<\/span>
\nKan stood up, bowed and slowly walked to the stage, waving.<\/span>
\nThe\u00a0 MoC read out his achievements as he got closer.<\/span>
\n“Kan has achieved the extra-ordinary feat of putting in hundred years of work in his\u00a0fifteen year career as a patent attorney.<\/span>
\nSource:<\/strong> Work hours mentioned in his time sheets, which he was kind enough to share with us.<\/span>
\nHe is the only patent attorney in India to advise more than thousand clients in 2016.<\/span>
\nSource:<\/strong> His Secretary’s notes.<\/span>
\nAnd, Mr. Kan was instrumental in concluding the US-India IP partnership.<\/span>
\nSource:<\/strong> Comment he wrote on his blog.<\/span>
\nThe hall,\u00a0 filled with about twenty people, fifteen of them Kan’s family members, erupted as he took the award he paid for.<\/span>
\nNote:<\/strong> Adapted from a pre-existing joke.<\/span>
\nCan the creator of the joke sue me for copyright infringement? The answer to that question\u00a0 would be\u00a0 guided by three enquiries:<\/span>
\nIs the joke copyrightable?<\/span>
\nIf it is, is my version infringing?<\/span>
\nIf yes, is my use of the joke fair use or fair dealing?<\/span><\/p>\n

Copyrightability of Jokes<\/span><\/h2>\n

Any work expressed on a tangible form, which is original and has a modicum of creativity is copyrightable provided it is listed as a protectable work under the copyright statute. Literary, Dramatic, Artistic, Musical, Cinematographic, Photographic and Sound Recording works are listed for protection under the Indian Copyright Act. Jokes can fit into several of these works. A written joke is a literary work, a performed joke captured on video or audio is a cinematographic work and\/or sound recording, a painted joke is an artistic work, etc., and fitting jokes into one of the\u00a0 eligible subjects for protection is straight forward as long as the joke is captured on a tangible form. Most jokes are cracked in casual conversations, and are not necessarily expressed on a tangible form, and so, those jokes are not copyrightable. Simply put, if you crack a joke, and you do not take the effort to write it down, record it, or capture it on any other tangible medium, your joke does not get copyright protection.<\/span>
\nFor jokes expressed on a tangible form, it is relatively easy to establish independent creation for proving originality, and minimal extent of creativity always exists in most jokes. But it is not always as straight forward to establish that a joke is a protectable expression and not an unprotectable idea. Jokes are often the result of word and fact play, and encounter protectability issues because copyright protection does not extend to short phrases, facts, expression mergers, and so on.<\/span><\/p>\n

Short Jokes, Facts and Copyrights<\/span><\/h2>\n

Generally, copyright protection does not extend to short phrases and slogans, and a joke that is very short may not merit protection unless it is very creative. The standards of the test for creativity here is much higher than the modicum of creativity test generally applied to longer works. For example, when we were at school, there used to be a\u00a0 one line joke, which used to send us into fits of laughter.<\/span>
\nSome one would simply say, “Father went to church,” and all of us would burst out laughing. We used the involuntary response it solicited to good effect in many plays, and the joke was well documented in one or two of the scripts I had written. I did not create the joke though, and will not get into originality issues here.<\/span>
\n“Father went to church” was a hit at school because church meant something in our minds, and church was not actually church, it was something else. Though it was, and is still probably a great joke in alumni meets, it is not copyrightable on various grounds. It is a short phrase, there is nothing creative about it, and it is a fact. What is the big deal about Father Francis going to church anyway?<\/span>
\nAssessment of creativity for short jokes is subjective and experts\/judges often disagree on protectability. For example, “Did you just qualify as an Indian Patent Agent? Welcome to the Bimbo Club,” may not be creative enough to merit copyright protection for me, but for some one else it might be creative enough.<\/span>
\nDo you think this supposed joke is sufficiently creative for copyrightability?<\/span>
\n“Did you say you copyrighted this?<\/span>
\nDoes that mean I can’t\u00a0 put you on my to do list any more?”<\/span><\/p>\n

Jokes and Copyright Infringement<\/span><\/h2>\n

Once a joke passes all hurdles and is considered copyrightable, the next step is to prove that it has been infringed. The standard test for determining whether a work has been copied is the ‘Substantial Similarity’ test. In order to be infringing, a joke must be substantially similar to a copyrighted joke. Substantial Similarity is assessed based on different tests all of which try to determine if\u00a0the\u00a0expression in the copyrighted work has been copied. If the idea is the same, but expression different, a work will not be infringing.<\/span><\/p>\n

Example<\/span><\/h3>\n

Joke 1: “Who is slower? Koala? or Copyright Office?<\/span>
\nI will put my money on Copyright Office any day.”<\/span>
\nJoke 2: “Copyright Office and Australian Koala \u00a0belong to the same species.”<\/span>
\nJoke 1 and Joke 2 are based on the same idea, but their expressions are completely different. One does not infringe on the other. Though they refer to the same office and the same animal and infer the same thing, their expressions are not substantially similar. Therefore, copyright infringement does not exist.<\/span>
\nCopying any of the jokes verbatim, or with slight modifications would give rise to copyright infringement liability. Use of a copyrighted joke in a different mode, means, format or medium is also infringement, and actions like adapting a joke from a book into a comedy show or movie will give rise to liability. Providing attribution or reference will not relieve one from copyright infringement liability.<\/span>
\nFor example, you will be liable for infringement if you crack Khushwant Singh’s jokes from his books in a\u00a0 movie. You must take permission from the author\/copyright owner if you wish to use the jokes.<\/span>
\nHowever, if the jokes are in the public domain, you are free to copy them without fear of copyright infringement liability. You may copy, adapt, perform, and distribute jokes from Jerome K. Jerome’s Three Men in a Boat as the work is now in the public domain. You must, however, give appropriate attribution as moral rights may still subsist in the joke based on where you are using it.<\/span><\/p>\n

Jokes and Fair Use\/Dealing<\/span><\/h2>\n

Use of a joke will be exempt from copyright infringement if the use is fair, or the use amounts to fair dealing. The Indian Copyright Act provides for a long list of activities that are considered as fair dealing, and therefore, exempt from infringement. Over the years, courts have also created a non-statutory, common law fair use doctrine to exempt qualifying uses from infringement liability. The test of fairness may be based on the nature of the use, purpose of the use, public interest, extent of use, impact on the work’s market, and\/or other relevant factors the Court deems fit.<\/span>
\nUse of jokes for purposes of research, education, news reporting, and criticism would generally be considered as fair dealing. The same would normally hold true for performance of a joke in social gatherings, family functions, amateur clubs, educational institutions, and ceremonies. Profit motive may prove to be a determinative factor for determining fair use under certain circumstances.<\/span>
\nFor example,\u00a0 cracking copyrighted jokes in a cultural performance at IIM, Bangalore (IIMB), would most probably be considered as fair use, but performing the said jokes in a ticketed show for students might not be considered as fair use. Actions like performing the copyrighted jokes in a comedy show on television will rarely qualify as fair use\/dealing.<\/span>
\nCracking copyrighted jokes during a casual conversation would be fair use, but cracking the same jokes during a chat show on television might give rise to liability.<\/span>
\nAs you can see, fair dealing\/use determination is not objective except under extreme circumstances, and whether a particular use is fair or not depends on the nature, purpose, and circumstances of use among other factors.<\/span>
\nThe Right to Joke<\/span>
\nHumour is a very important element of life. It makes a person happy, and adds to the beauty of life. You are free to crack jokes and have fun, but remember that jokes may be the subject of copyright protection, and the owner may not sit and watch while you use her jokes in commercial settings. Note that your right to crack jokes is not free from limitations.<\/span>
\nNote: As you can see, I am not much of a joker. Please pardon me for the poor jokes in the article.<\/span>
\nCitations<\/strong><\/span>
\nSee Sections 13, 14, 51, and 52 of the Copyright Act, 1957 as amended in 2012<\/em><\/span>
\nSee Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan, ( AIR 1985 Bom 229); <\/em><\/span>
\nSee RG Anand v Delux Films and Others, (AIR 1978 SC 1614)<\/em><\/span>
\nSee Eastern Book Company v. D.B. Modak (2002 PTC 641)<\/em><\/span>
\nSee Dr.Reckeweg and Co. Gmbh. and Anr.Vs.Adven Biotech Pvt. Ltd (MANU\/DE\/0961\/2008)<\/em><\/span>
\nSee Bleistein v. Donaldson Lithographing Co (188 U.S. 239 1903)<\/em><\/span>
\nSee Alfred Bell & Co. v. Catalda Fine Arts, Inc (191 F.2d 99 2d Cir. 1951)<\/em><\/span>
\nSee<\/em> Feist Publications, Inc.\u00a0v.\u00a0Rural Telephone Service, (<\/em>499 U.S. 340 1991)<\/em><\/span>
\nSee<\/em> Key Publications, Inc. v. Chinatown Today Publishing Enterprises Inc (945 F.2d 509, 511 2d Cir. 1991)<\/em><\/span>
\nSee Darden v Peters (403 F.Supp. 2d 638 2005)<\/em><\/span>
\nSee Federation of Industries of India v. Kesavalu Naidu (CS OS No 596\/2007)<\/em><\/span>
\nSee Godfrey Phillips India v. Dharampal Satyapal & Anr (MANU\/DE\/3015\/2012)<\/em><\/span>
\nSee Khemraj Shrikrishandas vs. Garg & Co. and Anr.<\/em> (<\/em>AIR 1975 Delhi 130)<\/em><\/span>
\nSee Cook v. Robbins, (232 F.3d 736 9th Cir. 2001)<\/em><\/span>
\nSee<\/em> Gingg v. Twentieth Century Fox Film Corp., (56 F. Supp. 701 S.D. Cal. 1944)<\/em><\/span>
\nSee Pendleton v. Acuff-Rose Publications, Inc. (225 U.S.P.Q. (BNA) 935 M.D. Tenn. 1984)<\/em><\/span>
\nSee Universal City Studios v. Kamar Industries, Inc.( 217 U.S.P.Q. (BNA) 1165 S.D. Tex 1982)<\/em><\/span>
\nSee DC Comics, Inc. v. Crazy Eddie, Inc. (205 U.S.P.Q. (BNA) 1177 S.D. N.Y. 1979)<\/em><\/span>
\nSee<\/em> RG<\/em>\u00a0Anand\u00a0v.\u00a0Delux\u00a0Films (MANU\/SC\/0256\/1978)<\/em><\/span>
\nSee<\/em> Twentieth Century Fox Film Corporation v Zee Telefilms Ltd & Ors.\u00a0 (MANU\/DE\/3094\/2012)<\/em><\/span>
\nSee<\/em> Castle Rock Entm\u2019t, Inc. v. Carol Publ\u2019g Group, Inc. (150 F.3d 132, 137 2d Cir. 1998)<\/em><\/span>
\nSee<\/em> Walker v. Time Life Films, Inc. ( 615 F. Supp. 430, 434 n.2 S.D.N.Y. 1985)<\/em><\/span>
\nSee<\/em> Hamil Am., Inc. v. GFI, Inc. (193 F.3d 92, 102 2d Cir. 1999)<\/em><\/span>
\nSee<\/em> Carol Barnhart, Inc. v. Econ. Cover Corp. (773 F.2d 411, 422 2d Cir. 1985)<\/em><\/span>
\nSee<\/em> Jorgensen v. Epic\/Sony Records (351 F.3d 46, 56 2d Cir. 2003)<\/em><\/span>
\nSee<\/em> Kay Berry, Inc. v. Taylor Gifts, Inc. ( 421 F.3d 199, 207\u201308 3d Cir. 2005)<\/em><\/span>
\nSee<\/em> Hustler Magazine, Inc. v. Moral Majority, Inc. (<\/em>606 F.Supp. 1526 C.D. Cal., 1985)<\/em><\/span>
\nSee<\/em> TCA Television Corp. v. McCollum,<\/em>\u00a0(No. 15 Civ. 4325 S.D. N.Y. Dec. 17, 2105)<\/em><\/span>
\nSee<\/em> Love v. Kwitny<\/em> (772 F.Supp. 1367 S.D. N.Y., 1989)<\/em><\/span>
\nSee<\/em> Castle Rock Entertainment, Inc. v. Carol Publ. Group<\/em> (150 F.3d 132 2d Cir. 1998)<\/em><\/span>
\nSee<\/em> (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc. (935 F.Supp. 490 S.D. N.Y., 1996)<\/em><\/span>
\nSee<\/em> Warren Publishing Co. v. Spurlock d\/b\/a Vanguard Productions<\/em> (645 F.Supp.2d 402, E.D Pa., 2009)<\/em><\/span>
\nSee<\/em> Syndicate Press of University of Cambridge v. Kasturi Lal & Sons (2006 32 PTC 487 Del)<\/em><\/span>
\nSee<\/em> Civic Chandran and Ors. vs. C. Ammini Amma and Ors. (MANU\/KE\/0675\/1996)<\/em><\/span><\/p>\n

Authoured by Dr. Kalyan C. Kankanala –
\nChief IP Attorney, BananaIP Counsels (BIP Counsels);
\nCEO, Invenomics;
\nVisiting Faculty, NLSIU and IIMB; and
\nAuthor and Novelist.<\/p>\n","protected":false},"excerpt":{"rendered":"

This article provides a structured analysis of how Indian copyright law applies to jokes, covering originality, infringement, and fair dealing. It offers practical insights for creators and users regarding the legal limits and protections for jokes.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":21,"footnotes":""},"categories":[3,6],"tags":[31,93,540,917,8705,5619,2087,1226],"class_list":["post-40357","post","type-post","status-publish","format-standard","hentry","category-copyrights","category-intellectual-property","tag-copyright-infringement","tag-copyright-law","tag-fair-use","tag-indian-copyright-act","tag-jokes","tag-legal-analysis","tag-originality","tag-public-domain"],"_links":{"self":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/40357","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/comments?post=40357"}],"version-history":[{"count":2,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/40357\/revisions"}],"predecessor-version":[{"id":135959,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/40357\/revisions\/135959"}],"wp:attachment":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/media?parent=40357"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/categories?post=40357"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/tags?post=40357"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}