US comic Amy Schumer recently hit the news when she was accused of repeated plagiarism, something she vigorously denies, although video evidence posted on YouTube is persuasive to say the least. And she is certainly not the first to stand trial in the court of public opinion for what many see as the cardinal sin of comedy. Bill Hicks famously accused Dennis Leary of not only repeating jokes almost verbatim, but stealing his entire persona. Stewart Lee has also been particularly vocal on the issue, although his Plagiarists Corner now largely seems to be a joke mocking the concept with ironically tenuous links between old and new jokes, raising the question of whether he was ever actually serious about it.
Protecting a joke as intellectual property is incredibly difficult. Comics largely rely on an unspoken gentleman’s agreement not to steal one another’s jokes, and the internet has proved both a blessing and a curse in this regard. On one hand, it makes it easier to find material to steal, on the other, it makes it easier to spot those who are doing so and call them out publicly on it. Legally, however, comedians have limited options. Under UK law, a joke spoken by a comedian during a live performance cannot be copyrighted unless it is recorded or has been written down beforehand. It is not the idea behind the joke that is protected by copyright, only the exact form of words used to tell the gag. According to Matthew Harris of intellectual property specialists Waterfront Solicitors, ‘in theory, a joke can be copyrighted - but with shorter, snappier gags which rely on abstract ideas rather than specific plots, any infringement would be difficult to prove in an English court.’
It is also extremely difficult to prove that a comedian has purposefully stolen a joke. It could easily be argued that ‘stolen’ jokes are really the product of subconscious plagiarism, which is when you hear another comedian’s joke, forget it over time, and then write it later as if you have conceived it yourself. There is also an argument to be made for so-called ‘parallel thinking’. Jokes largely stem from universal experiences like sex and family, which are limited in terms of what is funny about them, and there is inevitably going to be some retreading over old ground.
There is also an argument to be made that stealing jokes is not actually even that bad. In T.S. Eliot’s essay, Tradition and the Individual Talent, he argues that ‘no poet, no artist of any art, has his complete meaning alone. His significance, his appreciation is the appreciation of his relation to the dead poets and artists. You cannot value him alone; you must set him, for contrast and comparison, among the dead.’ Eliot argued that poems formed part of a living organism that each new poem added to, changing both the poem and the whole body of poetry simultaneously. His poem The Wasteland was largely pieced together from a wide variety of other sources to form a new whole. Similarly, the re-appropriation of a joke by a comedian for a different time and context could be said to do the same. Comedians mostly have different characters, and the joke told by two different people has a different meaning as a result. While jokes may appear the same lexically, this context often gives them whole new meaning and in some ways makes them a whole new joke. Rather than shy away from it, comedians like Schumer should not apologize for stealing jokes, they should embrace what they are doing as part of their art form. Of course, it is often the case that comedians will simply be ripping off another artist as opposed to ‘recontextualizing’. Carlos Mencia’s repeating of a Bill Cosby routine (below) is a particularly egregious example of this, copying it almost word for word.
An easier area to define in court is when a company appropriates jokes without permission, simply to make money. For example, Foxworthy v. Customer Tees, Inc., 879 F.Supp. 1200 (N.D. Ga. 1995), in which comedian Jeff Foxworthy, famous for his ‘you might be a redneck if…’ jokes, filed suit for copyright infringement, among other claims, against a company selling t-shirts that had Foxworthy’s redneck jokes on them. Foxworthy won the case, with the courts concluding that the defendants had ‘copied the protected expression of Foxworthy’s jokes and, therefore, Foxworthy had shown a likelihood of success on the merits of his copyright claim.’
There have also been examples of comedian’s protecting their tweets. Last year, at least five separate tweets that copied a joke by Los Angeles freelance writer, Olga Lexell, were deleted by Twitter after he reported them for posting it without crediting him. How sustainable something like this is, however, and the implications for comedians if it was to set some sort of precedent, it is hard to say.