Is Copyright Funny?

Annual meetings of boring professional groups frequently try to spice things up by selling T-shirts containing double entendres, like "Chemists like to mix it up." Another might be "Copyright lawyers know how to reproduce" or maybe "perform." But are such things copyrightable? In Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200 (N.D. Ga. 1995), the court prootected what it called "redneck humor," at least Jeff Foxworthy's version of it: "You're a redneck if ... " followed by the punchline, something like "you ever cut your grass and found a car." As a staunch blue state person (I have a bumper sticker above my computer that says "U.S. Out of New England!"), I'll leave the humor quotient in these to others. Mr. Foxworthy has a big following, though, and perhaps we should leave it with Justice Holmes' comment in Bleistein that if his jokes "command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change." 188 U.S. 189, 252 (1903).

The court found the jokes wildly funny, apparently, structuring its opinion around headings of a like theme (judicial trade mark fair use, I guess); it also found them protectible: "two entretainers can tell the same joke, but neither entertainer can use the other's combination of words." But they can if that combination is not protectible. While monologues (especially ones like Steven Wright's) certainly surpass the requisite level of originality, the same cannot be said for Mr. Foxworthy's little bon bons. The Copyright Office's Compendium II discussion (section 420.02) has it right:

"Jokes and other comedy routines may be registered if they contain at least a certain minimum of original expression in tangible form. Short quips and slang expressions consisting of more than short phrases are not registrable."