The legal issues surrounding sketch comedy are similar to those I discussed in October about stand-up comedy. The premise behind a sketch is an idea, and that idea alone cannot be copyrighted.
Much like stand-ups, sketch comedians take a lot of ownership of their sketches, and it’s not unusual to find stories every few years about SNL allegedly stealing a sketch.
You obtain a copyright by fixing your original expression of an idea in a medium. This means anything from writing it down, to recording a video, or even making a audio recording. (Though, you get substantial additional protections by registering your copyright.) While it may be common for a young stand-up to never fix their act in a medium, sketches are nearly always written out before they’re performed.
Sketches differ from stand-up in another way: sketches will often have stage direction and other aspects of a staged work that are protectable in addition to the written dialog. These factors, the way a scene is staged and the actions actors take during the scene, if also present in an allegedly infringing work would help support a claim of copyright infringement.
However, a copyright infringement claim for sketch comedy faces many of the same issues as one for stand-up. Independent creation is not copyright infringement, and if two people independently come up with similar ideas, the staging for the those ideas may be necessarily similar. If two sketches are about a solider’s increasing strange last-wishes on the battlefield, they will both be staged with military uniforms, likely in a trench, and one solider will undoubtedly be in the other’s arms at one point. In this context, these elements are considered scènes à faire. Because they are virtually required elements of staging the sketch idea, they would not be given much weight in determining if there were infringement.
In most cases, what seems like a copied sketch may just be an example of two people having similar ideas, and executing them in the most obvious way – there are many constraints for doing live sketch comedy so the easiest way so stage something often wins.
Don’t steal jokes.