Joke thievery is a hotly contested topic in the stand-up community. When a comic feels they have a joke stolen from them it’s often tough to prove or take any sort of legal recourse to right their wrong. After all, a joke is intellectual property and usually written down at some point by the comedian. However it seems the grey area of joke stealing often lies in the parody or performance of the material. This weekend THR posted a guest column by James J.S. Holmes and Kanika D. Corley about the legal difficulties comedians have when it comes to protecting their material.
Under the Copyright Act, protection extends to original works of authorship fixed in any tangible medium of expression, now known or later developed. It follows that artistic content in tangible form, such as a comic’s written jokes performed to an audience (or recorded), is entitled to protection. Taken to its logical conclusion, if comedic works are copyrightable, then those who engage in “joke thievery” should find themselves subject to suit for copyright infringement thereby entitling the complainant to the Copyright Act’s statutory damages and attorneys’ fees.
Seems pretty cut and dry right? Well, not really. When viewed in the context of professional comedians it becomes a problem.
Although comedians may start with a written work — a script — the performance of the work rarely occurs without deviation. As a result, copyright may not issue because the work of authorship is not “fixed” in the manner necessary to establish a basis for protection. Stated differently, it is not possible to “fix” a performance that involves, for example, audience interaction. Accordingly, the only protection that may exist for the writer/performer is the right to protect that singular performance, but not the right to stop others from taking and then performing the content. As a result, the joke thief may actually prevail.
The article continues to state that over the last 30 years comedians have tried to sue over intellectual property, bringing branding, style, and trademark into the conversation. Going as far as breaking down high-profile cases like Joan Rivers v. an impersonator, Jeff Foxworthy v. a clothing company, and a personal fave, Gallagher v. Gallagher all winning infringement cases.
However, under the guise of parody it gets really blurred. The article offers up Carlos Mencia accusations he’s received over the years. Under the guise of parody it’s difficult to convict but rather it’s cases such as this that end up tried in the court of public opinion.
It’s a good read for any comic or person interested in the debate about joke stealing.