Tuesday, January 29, 2008

Jokes and Copyright

Jay Leno, NBC, and others (Rita Rudner, Jimmy Brogan, Diane Nichols, Sue Pascoe, Kathleen Madigan and Bob Ettinger) against comedy author Judy Brown and her publishers for the unauthorized publishing thousands of their jokes in 19 books over 10 years, entitled “The Funny Pages, Squeaky Clean Comedy, Funny You Should Know That, Getting Old Is a Joke and Joke Stew. (I wonder about the statute of limitations defense for the stuff older than three years). Leno is quoted as saying “I thought it was important to make it clear that jokes are protected like any other art form…. On behalf of the tremendous and talented group of writers we have at The Tonight Show and many other hardworking comedians, I'm very glad we've been able to stop this practice once and for all."

Brown, issued an apology : "In my books, I have published jokes of Jay Leno and the other comedians in this lawsuit without their permission.... I sincerely apologize for doing so. I greatly admire the creativity, wit and energy of stand-up comedians, and I recognize that comedy is as much an art form as other types of creative expression...This is why I am settling this lawsuit by agreeing never again to publish their jokes without asking their permission to do so."

While Ms. Brown was made to repent, some of our top comedians are alleged to have very sticky fingers with their colleagues’ materials. Many articles have been written about Robin Williams. Here is one from a Feb. 14, 2007 article in Radar, which begins:

Anyone who has ever performed stand-up is familiar with the red light, the universal signal that warns dawdlers it's time to wrap things up. In the '80s, comics at the Hollywood Improv came up with a novel use for the light. When shining steadily, it had the conventional meaning. But if the bulb began sputtering, it was the comedic equivalent of an air-raid siren, warning performers to lock up their original material immediately unless they wanted to lose it to a master thief.

Robin Williams, comedy's most notorious joke rustler, was in the house.

Though the rap has followed Williams for years, he's not alone. In the world of stand-up, joke-jackers are as common as exposed brick walls and liquored-up hecklers—an occupational hazard that eventually robs every working comic of time-tested material. It's the dirty little secret of the comedy world, a crime committed at every level—from amateurs at open mikes to big-name pros on late-night TV. Though rarely discussed outside the clubby, if sharp-elbowed, comic community, the subject is the surest way to wipe the grin off a funnyman's face. Daily Show correspondent Demetri Martin learned the lesson during his first year on the circuit, when he watched in horror as a comic brazenly recycled a joke he had told the previous evening. "I thought, Jeez, this is how it works?" he recalls.

George Lopez accused Mencia of ripping off his act for an HBO special. "One night, I picked him up and slammed him against the wall," Lopez told Howard Stern. Unfortunately, it is. While most comics take pride in performing their own material, many have built lucrative careers on borrowed bits.

There are numerous others mentioned in the article to including this rather unusual one out of many about Dane Cook:

Joe Rogan, host of Fear Factor and formerly of The Man Show, says he experienced this firsthand with a routine he spent months developing on the topic of tiger fucking. When Rogan saw a friend he'd performed with many times recycle his bit on Comedy Central after simply changing the tiger to a rhino, his claws came out.

The friend? Future megastar Dane Cook.

Here is a passage about Dennis Leary

Accusations of comedic skullduggery have also dogged Denis Leary, who has spent much of his career denying that he borrowed his act wholesale from Bill Hicks, the edgy, anti-establishment legend who died of cancer in 1994. Critics have long cited a laundry list of alleged similarities between Leary's 1993 album No Cure for Cancer and Hicks's earlier work, from Leary's angry, chain-smoking persona to specific jokes about tobacco, health nuts, and lame bands. The charges grew so widespread that they inspired a scathing joke among some of Hicks's friends that Leary had become famous only because, well, there's no cure for cancer.

Colleen McGarr, a onetime talent coordinator for the Montreal Comedy Festival and a close friend of Hicks's was backstage at the fest in 1991 when she first saw Leary perform what seemed to her an uncomfortably familiar set. "I was aghast," says McGarr, who later became Hicks's manager and fiancée. "To me, it was Bill's material done in a shabby, humorless way, but shocking enough that people would respond to it."

"I was shocked that [Leary] could still work in Boston," says Rogan, who claims he has also watched Leary recycle old bits by Ray Romano.

Compendium II of Copyright Office Practices § 420.02 states: “Jokes and other comedy routines may be registered if they contain at least a certain minimum amount of original expression in tangible form. Short quips and slang expressions consisting of no more than short expressions are not registrable.” In other words, jokes are to be considered under the ordinary originality standard applied to all other material.

What have the courts held? In Jeff Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1217–1219 (N.D. Ga. 1995), the court gave very expansive to Jeff Foxworthy’s “You might be a redneck if …” one-line jokes, jokes which seem to fit within the final, non-protectible part of the Compendium, taken individually. The court however, saw things differently:

Defendants argue that the jokes are not original to plaintiff because he receives ideas, often in the form of jokes, from others. To support this assertion, defendants point to the Foreword to plaintiff's book, Red Ain't Dead, where plaintiff wrote

[N]ot a day goes by that someone doesn't offer me a new example of ‘redneckism’ ... With the help of my wife and friends, I add several to the list almost daily. I have collected numerous Redneck Lines from radio audiences and even from my live show audiences.

… Defendants therefore argue that “plaintiff's work consists of preexisting ‘public domain’-[sic] material that was ‘authored’ by many persons over the years.” …

Plaintiff testified at the hearing in this matter that he does in fact receive ideas from other sources, but more than 95% of his redneck joke ideas are original to him. … More important, plaintiff testified that, even when he receives an idea from another person, it is plaintiff who takes the idea and gives it the expression in the form it appears in his books. In other words, plaintiff testified unequivocally that he wrote every word in his books, calendars, etc. Finally, plaintiff testified that he wrote and had the ideas for each joke appearing on defendants' t-shirts produced at the hearing.

In the same way, two entertainers can tell the same joke, but neither entertainer can use the other's combination of words. This is where defendants' argument misses the mark. Copyright is concerned with the originality of the expression, not the subject matter. Plaintiff repeatedly stated that he uses other people's ideas, but he puts them in his own words. At the hearing, he explained why:

A joke is [...] a strange thing. And probably to the public, they never realize this. But I have-with a comic, we all have the same bowl of words to work with, and the whole trick is to take the smallest amount of words and put them in the proper order. You know, I've sat backstage with Jay Leno or Gary Shandling and sometimes for ten or fifteen minutes argued about a particular one line in a joke, which word should go where, should you delete this, which word should go to the end of the joke, and so that's why it changes. I mean, it's to get the maximum laugh from, you know, the shortest amount of material.

Q. How important is the particular expression of the joke versus the underlying idea of the joke?


A. Well, I mean the idea is key in coming up with the wording. You need-the idea comes first and then you play with it to get the wording correct.

Unofficial Trans., at 18-19. Plaintiff clearly established at the hearing that all of the jokes copied by the defendants were not only his own ideas, but his own expression. His expression clearly evidenced a “modicum of intellectual labor,” Feist, 499 U.S. at 346, 111 S.Ct. at 1288 (quotation marks and citation omitted), and defendants clearly copied that expression verbatim. Accordingly, plaintiff has shown a likelihood of success on the merits of his copyright claim.

Another case involved the classic humor-grabber, the fart joke, JCW Investments, Inc. v. Novelty, Inc., 289 F.Supp.2d 1023 (N.D. Ill. 2003), in which the trial court was offended by defendant’s association of such jokes with a specific class of people:

Defendant directs the court's attention to excerpts from Jim Dawson's Who Cut the Cheese? A Cultural History of the Fart, Ten Speed Press (1999), as evidence that “ ‘fart jokes’ have long been popular ‘among the lower classes’ and ‘poor people.’ ” Assuming arguendo that this proposition is true, however, does not dictate that it is “standard” to depict a farting character as having low socioeconomic status.

On appeal to the Seventh Circuit, 483 F.3d 910 (7th Cir. 2007). the great Judge Diane Wood expressed that court’s surprise: "Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative."

Whether Mr. Leno is blowing hot air with suit, it does seem that the practices of some other comedians is less respectful of those (still striking) writers and whose behalf of course the suit was brought.


Anonymous said...

The transition at the end, from flatulence to Jay Leno... that's genius baby :-)

William Patry said...

Tekel, it came to me in a flash of inspiration: its always hard to figure out how to "end" a piece.

Anonymous said...

Take my jokes - please!

Anonymous said...

Basically stand up comedy functions without reliance on copyright - see this Carlos Mencia vs Joe Rogan clip http://www.youtube.com/watch?v=6nEH8H5BqWg (NB profanity laced).

Incidentally Stephen Colbert has also used this joke 'Mexicans have to go, just as soon as they finish building the wall', and the end result? Good comedy spreads - and that's for the public good. The clip above demonstrates that norms can be powerful in policing "infringement".

Anonymous said...

You had perfect timing for me with jokes and copyright. I am covering originality and works of authorship right now with my class, and could not resist discussing Jeff Foxworthy's creativity as well as the Pull My Finger Fred litigation. My students shared plenty of examples of borrowed lines, stolen jokes and misappropriated skits. I am still laughing!

Anonymous said...

i'm no comedy historian, but i have heard people who are big stand-up fans get pretty riled up, talking about dane cook and his penchant for ripping people off.