Whose Line is It Anyway Part 3 – Improv

Improvisational comedy, comedy made up on the spot often by a team of performers, has been increasing in popularity over the last 20-30 years. What was previously isolated to a few major cities, has spread to theaters across the nation. There was even an improvised Off-Broadway musical last year.

With all of this creativity, surely there must be strong intellectual property (IP) protections for improv. After all, the common refrain is that without strong IP protection, authors wouldn’t write, singers wouldn’t sing, and auteurs wouldn’t make movies.

Improv is often done in a specific format that follows certain rules for the order of scenes, or style of transitions between scenes.

In order to obtain copyright protections, the work must be fixed in a medium. As improv isn’t scripted, there is no written work for which you can obtain copyright protection, and any recording of the performance would only protect that performance itself – not the underlying structure. To the extent the structure was written down as instructions, those are largely unprotectable as being instructions and factual – not a creative expression.

Trademarks protect the source of goods or services, and does not extend anything with a function. The elements that make up an improvised format are necessarily functional, and thus the format is not protectable by trademark law. As long as the name of a show isn’t descriptive – the name of the show could be protectable as a standard service mark.

Finally, patents generally cannot cover things that can take place entirely in someone’s head. Because this accurately describes the vast majority of improvisational theater, it is also ineligible for patent protection.

Improv Communities do have some norms – if one person is doing a show, or has recently done a show, other members of the community will generally refrain from doing similar shows.