No Laughing Matter: Can You Copyright A Joke?
from the knock-knock dept
Last year there was a bit of a fuss when comedian Joe Rogan accused Carlos Mencia of stealing jokes. Amusingly, Mencia responded to the claims of plagiarism by using a copyright infringement claim to get Rogan’s video of the accusation taken down. However, in a more detailed discussion of the issue, we pointed out how silly it is to claim a copyright on a joke. There are a ton of joke books out there, many of which collect all kinds of jokes that have been told by many people, without bothering to find the originator and pay them (or even credit them). In fact, with most jokes, it’s not the joke that matters, but the delivery. As I noted, I had recently read Isaac Asimov’s “Treasury of Humor” where he admits that almost all of the jokes are ones he heard from others — and no one seemed to think it was infringing.
However, that didn’t stop Jay Leno and some other comedians from suing a woman who published a recent joke book that included some Leno jokes. Rather than go through a lawsuit, the woman and her publisher quickly settled the lawsuit paying an undisclosed sum and publicly apologizing. This leads William Patry to put together some details of other court cases looking into the copyrights of jokes, noting that Jeff Foxworthy sued someone for using his jokes, even though he admits people send joke ideas to him that he uses.
All of this seems to be an unfortunate extension of the increasing use of copyright to “control” every last use of content. Telling jokes is a social experience, often having little to do with the material itself, and quite a lot to do with the performance and delivery. Witness the movie The Aristocrats, where the entire premise is getting a bunch of different comedians to all tell the same joke, and looking at the different performances and embellishments. No one screamed about copyright infringement in that case — and the comedians seemed to relish the chance to tell the same joke in many different ways. It’s unfortunate that we’re now reaching the point that something that used to be a shared experience is also going down the path to being protected and limited.
Filed Under: carlos mencia, copyright, isaac asimov, jay leno, jeff foxworthy, joe rogan, jokes
Comments on “No Laughing Matter: Can You Copyright A Joke?”
What's fair use?
The Aristocrats has been around decades; the suits and screaming we’ve seen over lifting others’ jokes (which could also go to trade dress: think the various styles of different comedians) have always been about recent appropriation. Are you going to claim that comedy is not a creative work and comedic works not subject to copyright?
Steven Wright probably isn’t going to sue me today for printing his “spot remover” joke; it’s 20 years old. But yanking Daily Show material from last year is another matter since it’s not only recent but there’s also a very good chance that Comedy Central plans to further monetize it themselves in print form as they’ve done already. They paid for the writers, they have the copyrights on the materials, I would have no right to spread the joke that Stewart tells for monetary gain; neither does Mencia (who has the audacity to claim authorship of bits he lifted) have the right to perform Rogan’s material.
The only way that this could be seen as absurd is if they were to go after some schlub for telling the joke he heard on TV or in a nightclub at the water cooler in his office.
Amusingly, Mencia responded to the claims of plagiarism by using a copyright infringement claim to get Rogan’s video of the accusation taken down.
This is the only funny thing Carlos Mencia has ever done.
Re: Re:
Joe Rogan has a DVD of his standup from 2005. I’ve forgotten the name but it was one of the funniest comedian shows I’ve ever seen, I still have it and show everyone I can.
Carlos Mencia has nothing on him…nothing!
Offtopic I know but in all honesty when you say “Joe Rogan” people think “douchebag with that dumbass show where people eat gross crap” when in reality he seems very intelligent and his humor is actually based a lot in science!
Re: Re:
Haha, good comment
That joke they told in the Aristorcrats is very old. PD.
Joking aside
I have two movies from Jeff Dunham. In one of the commentaries he tells a story kinda like this.
During his act he will ask someone in the audience what they do for a living. He has responses for doctors, lawyers, and others. Every now and then someone will respond “nothing” to witch he replies “how do you know when you’re done?” He heard that response when he was in college and no matter how much he thinks about it he can’t think up a better one.
After one show where he used that joke another (newcomer) comedian came up to him and asked him not to steel his jokes. It may not be that someone is steeling someones jokes it may just be that someone is an idiot.
I have also heard many comedians speak of this. They say that having their jokes stolen is an honer since they must be good jokes. I have also heard others say that stealing jokes is OK since the one steeling them just can’t tell them as well as the original and if they can then good for them. It’s all about the delivery and that can’t be stolen.
Re: Joking aside
Very good points. Steve Harvey(RIP) wrote a book many years ago that was talking about formulae for creating jokes/humor, and I’ve read another book(I forget the author) recently that had the same ideas: jokes really aren’t that original because they all follow one of several different formulae which make the art of joke writing little more than filling in the blanks in something akin to MadLibs. One even told how you could flesh out your jokes to give them better impact. This was a freakin’ formula that anyone could follow.
Jackie “the Jokeman”, had a segment at one time on if you told him the beginning of an adult joke, he could tell you the ending. I watched him do several people and no one could get one past him. If that doesn’t tell you that jokes are created with a formula, I don’t know what does.
I find this very believable because I’m a professional magician, among other things, and there are literally only about 20 different actual effects in magic: production, disappearance, transposition, transportation, physical feat, etc. Everything else is just “content” i.e. you can make a card disappear, or you can make a dove disappear but each effect only has a set number of ways to be accomplished and that’s pretty much it; there are exceptions but we’re talking a handful compared to millions that fit the rule. Of course even with all this you will still find magicians who think that they own the rights to a particular trick/move and that they can enforce limits on its use, to which I have to say that *most* are full of shit.
Jesus christ. I am tired of this. I dont invent jokes, but I invent other things an give them away for free every week. I dont deserve to get rich off them. I dont even deserve to make a living off of them. Neither do these joke tellers. They do it because and only as long as they can, not because they deserve to because of their creativity.
Nobody deserves anything. Seriously. Get that through your thick skulls. We don’t deserve to be living on earth in the 21st century, where the singularity is on the horizon and life is good. We certainly dont deserve to be living in america, where we are so pathetically comfortable that every single trillion of our homo sapiens predecessors would be bitterly jealous of us. We dont deserve the amazing internet where we can hear about this BS and vent about it.
We dont deserve _anything_; and certainly not money for jokes.
This is no joke: force your brain to give up feeling the idea known as ‘deserve’ and you will be a happier person. Guaranteed. Try it.
Re: Re:
Oh I forgot to mention the point of the paragraph about trillions of homo sapiens: we already have more than we deserve, every single one of us. So quit bitching about some tiny pittance of $ you think you deserve.
Try it another way
Let’s look at things another way. Let’s say Ron Paul gave a speech at a club and the subject was foreign policy. I’m at that speech and I use most of his material in my Politics class presentation about foreign policy and pass it off as my material. Is that ok?
Re: Try it another way
Suppose there is a grand tradition of passing off such material without attribution, as there is with jokes. Suppose only a few wet blankets are interested in changing that tradition because they are currently on top of the world and they are pricks and they can be easily dealt with by a punch in the crotch. Then, sure, rip it off.
Re: Try it another way
no, I think that’s plagiarism just like if you’ve copied from someone’s memoirs.
I agree with ReallyEvilCanine
@ReallyEvilCanine: I agree. Time is a large factor in this argument. New jokes can have a freshness which has a value, and using that freshness when you didn’t think of it is detrimental to the person who could be getting the publicity, the person who actually thought of it.
This is especially true when a very well known comedian steals a great and fresh joke from an unknown comedian, who finds their creative work stolen by someone who then disseminates it to the public, killing the freshness and making the joke essentially without value.
Trying to boil down what makes a joke to either the material or the delivery is a flawed concept. It is not possible to separate the two.
Would it be ok for me to write a novel, and then for you to use my exact same storyline, plot devices and character descriptions, but just do it in your writing style? Not in my mind.
Not a simple issue, nor one with an easy answer. I’m not suggesting litigation is a good solution, but neither is the unfettered use of ideas that were created by someone else.
Re: I agree with ReallyEvilCanine
In what way is a joke comparable to a novel? Are you saying that I can’t repeat any two sentences (typical joke length) that anybody else has ever said before me? What if I change a couple words? How insane can our country and our lawyers get?
Re: Re: I agree with ReallyEvilCanine
@ Wolfger: I don’t know what comedians you see that tell a lot of two-sentence jokes, but most modern comedians do a much longer routine on any given subject. I think if you typed out say a Chris Rock “routine” you’d find it’s pretty long on paper.
Re: Re: Re: I agree with ReallyEvilCanine
@Steve: I am unaware of any comedians stealing each other’s entire routines. A routine frequently encompasses many jokes. Individual jokes are frequently stolen and used elsewhere. I dare say most comedians don’t have an entire routine worth stealing. Those who do likely compiled (stole or “were inspired by”) jokes from several different sources to create their routine.
Re: Re: I agree with ReallyEvilCanine
It’s about performers ripping off other performers, not regular people at the water cooler you fucking dolt.
“It’s all about the delivery and that can’t be stolen.”
One wonders if this can’t be extended to, say, musical performances.
It's not the timescale that matters
For all the people saying that it would be okay if they had waited 10 o 20 years before using the jokes:
Copyright doesn’t last for only 10 or 20 years. It lasts for around 100 and is not likely to become shorter. So, either suing someone for copyright infringement over a joke is not acceptable, or the only jokes you ever hear will be either original to the speaker, illegal, or over a hundred years old. Gone will be improving on others’ material, gone will be direct inspiration of new material, gone will be Jeff Foxworthy who will be sued into oblivion for “stealing” jokes from people who tell them to him.
What if you come up with a joke on your own that to outsiders sounds like another comedian’s joke? How do you defend yourself then?
What about the comedy club owners? Do they then need to worry about getting sued for sponsoring and profiting from the illegal performance of copyrighted material? How many would be willing to take that huge risk?
And if you think that comedians wouldn’t do this to other comedians, you are not cynical enough. All it takes is one greedy bastard or a greedy inheritor of a comedian’s estate to destroy it all.
Re: It's not the timescale that matters
Or some uncreative tool (i.e. Dane Cook) to steal another comedian’s act.
Can I publish a book about some boy magician?
Sure. Nothing wrong with that. Lots of boy magicians. And girl magicians for that matter. And magical places. And stories about such characters’ experiences in and away from magic schools.
Now how ’bout I write about Parry Hotter — boy magician and attendee of the Warthog School of Magic — and his adventures with his red-headed buddy Wesley and a female interest named Hermana? How many milliseconds before Rowlings and her lawyers would be ramming a 200-page C&D up my ass?
Mencina didn’t steal Rogan’s joke verbatim, but he stole the idea, the set-up, the positioning, the plot and the punchline. And Mencina lied about having written the joke himself. For the same reason that it would be theft for me to sit there and paraphrase HP and the Sorcerer’s Stone (keeping every single bit of the plot and storyline in it), it’s wrong for Mencina to steal Rogan’s material.
lawsuits => lawyers
Although we say, for example, that Carlos Mencia sued Joe Rogan, it was Carlos’ lawyers who filed suit. It follows that it is generally the lawyers’ idea to take legal action.
My younger brother is a successful stand-up comedian. He went to Los Angeles a few years ago, and left for two reasons: (1) unknown comics get paid, at most, $100 per show–and getting on at all is quite a feat in itself (2) three of his best jokes showed up in Jay Leno’s monologues.
I was indignant. He was realistic. Comedy writers like to watch comedy, and they tend to forget where they heard jokes, or they may confuse memory with inspiration. He knew that he had plenty more jokes in him, but he didn’t like L.A. He makes a comfortable living in the South, where people are willing to pay more than $10 each admission and to buy high-priced drinks, so that the comics can be paid well.
It does seem odd that comics would sue. It doesn’t seem odd that anyone with lawyers on retainer would sue. That’s … why … you … pay … them … in … advance.
You're missing the real issue here, open those eye
This has absolutely nothing to do with comedy and everything to do with human nature and commercialism.
To simplify, telling jokes was perfectly fine until people started making money off of telling them. At the point of commercialization, THEN we had a problem. Same goes for stories, books, music, movies, software, whatever.
What needs to happen is a clear understanding to ALL what happens when someone wants to create something, and then give it away in a commercial context (which I thought was copyright). It is rather asinine to assume that ‘hey, I can burn this on my own CD, therefore it should be free” – and that is the main complaint from the people that are trying to commercialize their work.
Ironically, the GPL does the exact same thing to software, “you can have this, and you can have this for free, all you gotta do is comply with these restrictions here” and those restrictions clearly define how you CAN and CANNOT redistribute that software. The fact that it is usually free as in beer doesn’t mean you can just ignore the license of the creator.
This is all about copyright, and usually that only seems to matter when someone is trying to make a living off of (whatever it is that they do).
I work as a computer consultant. This is what I do, and I make a fairly nice living off of it without any copyright. Any of my work, and of the reports I make, can be shared around to whomever; once the report is made the transaction is done and my livelihood rests on *future work* that I do. Someone one could take recommendations I’ve made in the past and try to pass it off as their own to some other party, and I don’t really care. What I sell is my talent and my reputation. Authors, musicians, code writers, they’re all in the similar business of selling THEIR talent and THEIR reputations. Models which marketed their talents well in the past no longer work, and it’s asinine to support a system which rewards them for PAST work rather than encouraging them toward FUTURE production.
Re: Re:
@Anonymous Coward: You’re forgetting about the importance of a reputation in entertainment. Good references will do in a job interview, but to get a job as a comic you’re going to have to have a reputation for creative, unique material. If material is up for grabs, then how can you ever get a job?
What exactly is the encouragement for future production when every time you produce it’s stolen by someone with more exposure and increases their reputation while doing nothing for your own?
Re: Anonymus Coward
That really is a bad analogy. You are a computer consultant. You work for individuals or companies, you provide them a service, and they pay you. That is what are economy is based on, exchange of goods or services for money.
If I record a song, make a movie, or write a book, and many people are listening to/watching/or reading it, I’ve provided a service (entertainment) and should be paid. What if I’m a one hit wonder? Should I not get paid, even though millions of people enjoyed my music, because I won’t produce anything else with any worth? Being a author myself, I know authors who have spent years researching and writing one book because it is a topic they are a expert on, and they will never write another book. Should they not get paid because they only had one product in them, even if people use and enjoy that product?
And the system we have most certianly promote future production. The more I produce, the more I’ll have that I’m getting paid for.
Re: Anonymus Coward
That really is a bad analogy. You are a computer consultant. You work for individuals or companies, you provide them a service, and they pay you. That is what are economy is based on, exchange of goods or services for money.
If I record a song, make a movie, or write a book, and many people are listening to/watching/or reading it, I’ve provided a service (entertainment) and should be paid. What if I’m a one hit wonder? Should I not get paid, even though millions of people enjoyed my music, because I won’t produce anything else with any worth? Being a author myself, I know authors who have spent years researching and writing one book because it is a topic they are a expert on, and they will never write another book. Should they not get paid because they only had one product in them, even if people use and enjoy that product?
And the system we have most certianly promote future production. The more I produce, the more I’ll have that I’m getting paid for.
Re: Anonymus Coward
That really is a bad analogy. You are a computer consultant. You work for individuals or companies, you provide them a service, and they pay you. That is what are economy is based on, exchange of goods or services for money.
If I record a song, make a movie, or write a book, and many people are listening to/watching/or reading it, I’ve provided a service (entertainment) and should be paid. What if I’m a one hit wonder? Should I not get paid, even though millions of people enjoyed my music, because I won’t produce anything else with any worth? Being a author myself, I know authors who have spent years researching and writing one book because it is a topic they are a expert on, and they will never write another book. Should they not get paid because they only had one product in them, even if people use and enjoy that product?
And the system we have most certianly promote future production. The more I produce, the more I’ll have that I’m getting paid for.
Re: anonymous coward
There is a difference between ‘selling your time’ as a consultant to create a solution to a problem and being the originator of a ‘creative work’. No doubt many of the solutions created by a consultant have also been done by someone else at some point.
There was a legitimate claim behind the joke book lawsuit. The author would sit in the shows of comedians and write down the jokes. She would also write down the jokes as she heard them on late night. She then marketed the book as containing the jokes from those shows and comedians. She was clearly trying to sell her book based on their name value. If she had just sold a generic joke book with that contained those jokes, there probobly would not have been a problem.
Re: Re:
O RLY?
So, it’s ok if an author publishes jokes without giving credit to the source, but it’s not good for an author to publish those same jokes while actually giving credit.
That’s odd.
Intuitively, it seems to me that some sort of plagiarism here should be covered by copyright law, but I can’t figure out how much, but when credit is given, it sure sounds like fair use for me (and free advertisement for the source!)
Without the ability to steal each other’s jokes the entire Comedy Club industry would collapse.
Ironically we seem to have a business model that is based on the theft of IP. Now the CC industry needs to go to Congress and demand that their business model be protected.
Re: Re:
@Anonymous Coward: I don’t get it. Why would the comedy industry collapse without stealing jokes? There are new jokes, and so somebody’s creating them. If you could feasibly stop all theft of jokes (which I recognize you likely cannot), then you would see the most creative people getting successful, and the least creative people sinking to the bottom. And THAT is encouragement for future production of work product.
@Steve: My understanding is that the talent of a comedian is not in coming up with jokes per se but in delivery and presentation. If coming up with jokes was enough, then Jay Leno’s writers, and not Leno himself, would be the celebrities. Leno has the talent to deliver the jokes, and that’s the point. If you’re a good comedian, it won’t matter if other people are saying the same words, because you’re FUNNY.
Re: Re:
@A-C: I believe that understanding is incorrect. There are guys that are good at writing comedy and guys that are good at performing comedy. Often this results in a tv comedy, where actors who are good at delivery work with writers who are good with content. Stand-up comics have to do both of these things, and telling them that their job is “performing jokes” would be insulting, as they actually create material and present it.
You’re forgetting reputation: it does matter if other people are saying the same words as someone else because the distribution is unequal, and the first person to tell a joke to someone will likely be seen as the creator, whereas the second person will likely be seen as a copier. If you’re performing at a tiny club and the guy who’s “saying the same words” is a comic with an HBO special or something, it won’t matter how funny you are because nobody will see your material.
Well excuuuuuuuuuse me. Give him 10 grand.
“Steve Martin on 4.”
10 grand.
i gotta get this built
that being, my “every invention” system which generates every possible idea that can every happen. 99.99% of them will be worthless, but who cares. I can throw a joke module in and then proceed to generate every possible joke that could ever be created. pay me sucka.
I'll write a book.
that is a compilation of funny anecdotes from Techdirt, then I’ll have it published and sold. Don’t worry about copyright, I’ll make sure to cite anyone who wrote them.
Royalty? No, 100% of the profits go to me. And you can’t sue, otherwise you’ll be suppressing shared information that I’m making money off of.
Haha
What do you call James Bond’s equivalent in China?
SECRET ASIAN MAN!!!!
COPYRIGHT GOLD, I TELL YA, COPYRIGHT GOLD!
I just flew in from my attorney’s office and boy, are my…
…what, you’ve heard this one before?
Don't think you quite get the analogy, Corey
The computer consultant analogy is actually quite apt. I have a similar job, and let me tell you, I produce reams of potentially copyrightable material on each job. Every line of code, every email, every written suggestion and report is a piece of my original work.
On what moral basis do you argue that I ought to be able to prevent anyone else from using my work once I’ve already spent the effort necessary to create it? They are not depriving me of anything I actually own. This, I suppose, gets to the heart of copyright law itself. I just cannot see how it is morally acceptable to encourage people to pander to the ignorant majority in the hopes of striking it rich and never working again. This is clearly destructive, not only to those people, but to art and society as a whole.
If you have not deprived the original owner of his possession, you have not stolen, and the conflicting notion that a work could be both important enough that the creator deserves to never work again, yet unimportant enough to justify depriving all of society from using it for 100 years is obviously ludicrous. Remember, great art precedes copyright law (or law itself, for that matter). Humans will create, with or without money. It would seem to me, in fact, that money has made us less creative, since derivative, formulaic crap is most profitable.
In the 1960 film, Let’s Make Love, the main character played by Yves Montand is a millionaire who had an original joke written for him to impress the female lead, Marilyn Monroe. They are both rehearsing for a play where the tradition is that the whole crew yells out the punch line of any joke that gets told. To impress the group, the Yves character has a joke writer create an original joke for him and pays big money to do so. Unfortunately, Yves, who is pretending to be very poor, tells the joke in front of the writer who then accuses him of “stealing” the material. Yves then gives some lame excuse about overhearing it somewhere.
This scene certainly implies ownership of jokes and payment for their creation.
Hmmm.. I repeated some jokes yesterday to some of my co-workers. I am worried now.
www.vistafeel.com
don’t be afraid …it went great 🙂 check n letme know .here is the link !!!http://www.vistafeel.com
jay lamo's joke thief writers
ive done stand up for 3 years and jay thiefo’s writers ripped off one of my product jokes,i also have jokes about currant events that i dont tell because of thives,i would love to tell product jokes again i have many,but those are jokes jay thiefo likes to tell ,any suggestions.
This is the worst article I have ever read. All it does is speculate, not saying anything about actual copyright law.
First, I am not a lawyer nor have I ever played one on TV. But I like writing parodies and so have looked at copyright laws quite a bit.
It would seem to me that what is called the “Merger Doctrine” would apply in the case of jokes. The merger doctrine says basically this.
You can’t copyright an idea, only the way you put that idea into words.
Some ideas can only be expressed in a few ways.
If someone was given a copyright on one of these few expressions of an idea, it would also give them a monopoly on the idea itself. (a copyright being a limited monopoly)
Since you cannot have a monopoly on an idea (the purpose of the copyright law being to promote knowledge and not protect people rights to their materials- its in the US Constitution no less!) you cannot copyright an expression of an idea if there are only very limited ways to express that idea.
The idea and the expression of that idea are said to be “merger” hence the term “merger doctrine.”
Jokes seem to fall into this catagory. They are short expressions of ideas. It would seem that their are very limited ways to express the ideas in a joke, so those expressions are given limited, if any copyright protection
Here is the way someone else put it.
“In United States copyright law, the merger doctrine holds that if an idea and the way to express it are so intricately tied that the ways of expression have little possible variation, there will not be copyright infringement, lest the copyright prevent others from expressing the same idea. The overall principle is that of the idea-expression divide, where you can copyright an expression but not an idea.”
By the way, copyright law only applies to something in fixed form, that it, if it is written down or recorded. If you tell an original joke, but is is not written down or recorded, then anyone can steal it write it down and claim it as their own. Leno is ok because they most likely have a script and the show is “taped,” but he should lose on the merger doctrine because there only limited ways to say the things expressed in any of the jokes he tells.
Of course, if you copy him word for word, and hundreds of jokes, you might be in trouble if you don’t have his/ the networks permission.
Comments, particularly from lawyers, are welcome.
rob k
Archive and document dates
It’s one thing to parallel a premise by your own originality.
“Relationships” and “Kids” are just two premises with a thousand avenues open for originality and creativity.
To repeat the premise, set up and punch is quite another.
Cosby did a teaching his kid football bit in the 1980’s with the pay-off, “Hi Mom!”
Mencia did the bit years later nearly verbatim.
I frequently keep my comedy notes of my sets and jokes in an email file. If it ever came in question; the bit is cyber dated.
I think the only end result of this would be that if someone lifted a joke or two…or even worse..”I” was accused of doing so; I could show peers without a doubt that I came up with the idea first.
a comedian walked into a bar……
Cheese Joke
I’ve just created this little gem. You heard it here first…
‘What kind of cheese covers up sh*t?… Mascarpone’
Thank you and goodnight! x
Absolutely agree.
I have recently bought out a book called E-Quipped. (A compilation of pictures, quotes and jokes that have been sent to me via Email of amusing things from the internet,gathered over the years. It was published and now banned because I cannot provide URLs of where the material that has circulated the web for many years has originally come from. If something is compiled and annedotal, as long as I do not claim I wrote it. (In some cases the material is annon.) I thought I was safe but it appears not. OK, it’s not my material I’ve compiled but I’ve stated names where there were names. Also offered for anyone to step forward and claim the material or to have it removed. Other than that where can I begin. What started as a great book, has become a great headache to me. Too much of a sueing culture I’m afraid.
Regards
Lisa Matthews
Mencia joke you made
Nice. I’m getting into writing comedy. Please reply if you are a writer and might be interested in e-mentoring.