March 11, 2010

It’s All Fun and Games Until Someone Gets Sued

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Back in the 1920s, when vaudeville ruled the entertainment scene, each troupe registered their act with the administrative office. If an act accused another act of joke stealing, the parties would go back to the main office, check the records and see who performed the piece first.

In the modern stand-up comedy scene, with so much dissemination of material, the law only provides one real protection against joke stealing: copyright.  In order to bring a lawsuit against a performer who has stolen a joke, comedians must have registered a copyright for that joke, similar to the registration previously used in vaudeville.

While most comedians are aware of this option, they don’t seem to use it for two main reasons. First, it’s expensive. Registering a single joke costs between $35 and $45.  Second, copyrights are too precise to afford any practical protection.  When a joke is copyrighted, that protection covers only that exact expression, down to the choice and order of words.

In the 1990s, Jeff Foxworthy successfully litigated a trademark claim against Custom Tees, which was selling t-shirts with his famous tagline, “You might be a redneck if …” The court concluded that Foxworthy was so widely known for this tagline that the average consumer would be confused about the source of this merchandise.  Trademark claims such as these are of little help to most comedians, however, since few have a line so universally identified with them. (Rodney Dangerfield’s “I don’t get no respect” would be protected, if anyone dared to steal from him.)

In the modern comedy world, comedians don’t bring lawsuits over jokes stolen by other comedians, and instances of joke stealing are isolated and rare. This status quo derives from two things: the change in comedy styles over the last half-century and the establishment of social norms among comedians.

In the post-Vaudeville era, joke stealing was rampant, but the style of comedy lent itself to theft. The greats of that era, such as Milton Berle and Bob Hope, perfected the art of timing and performance — and hired teams of joke writers. Bob Hope wrote all his jokes on index cards, timed them down to the second and filed them by subject.  The jokes of that era were shorter and less personal in subject matter, which meant two things: An hour-long bit contained more individual jokes than a modern comic’s bit, and the jokes could be written by anyone.

By contrast, modern stand-up does not lend itself to theft.  Modern comedy is so focused on the unique first person perspective of the performer that comedians could not get away with stealing material. Not only would one comedian’s jokes not work for another performer, but other comedians and fans know when a comedian has stolen a bit from someone else.  Stigma is the regulatory mechanism in the modern stand-up world.

Comedians police one another, and the rules among comedians differ from established law.  Take the case where Comedian A has a premise, and Comedian B comes up with the punch line. According to the law, both comedians have joint ownership over the finished joke. According to comedians, Comedian A gets the joke, and Comedian B gets nothing. Now take the case where Comedian A tells a joke on stage, and later Comedian B tells a similar joke, which captures the premise or idea or concept, but doesn’t use the same words or phrasing. According to the law, since there is no copyright violation, Comedian A would need to prove that Comedian B’s joke did not have an independent creation in order for him to have a cause of action. According to comedians, Comedian B is a joke thief.

Typically, if two comedians in the same scene are performing similar jokes, they talk it out amongst themselves. Sometimes the comedians will agree to not do the joke in the same comedy club or same city, but often, one comedian will just give up the joke because the other comedian did it first, needs it more or made it funnier.

If a comedian is accused of joke stealing, the stigma from other comedians is more powerful than any remedy the law could provide.  A known joke thief might be unwelcome in certain comedy clubs, unable to find another comedian to bounce ideas off of and the subject of public ridicule. For example, George Lopez claims that Carlos Mencia stole thirteen minutes of his material for one of his specials. Lopez discussed his claim in the media, and allegedly assaulted Mencia in a comedy club.

Reputation in stand-up comedy is a powerful thing, and ultimately a more remedial force than any damages the law could provide.

Original Author: Kate Lee