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The Failure of IP law to Protect Comedians

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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Nobody owns comedy. Nobody owns a premise. Nobody owns an idea.

Trevor Noah

The justification behind intellectual property law is rooted in the principle of encouraging creativity and industrial advancement by providing property rights to those that have gone beyond their peers and created something worthy of development. Copyrights, in particular, ensure legal protection in numerous avenues of creative endeavours, encompassing – amongst others – the literature, music, dramatic and film industries.

In recent years, however, it has become apparent that legal protection afforded by international and domestic copyright law is incapable of providing sufficient security for many creators and entertainers – particularly those working in comedy – to the point that the formal law has been almost entirely rejected and replaced by a set of social norms. The upcoming American case of Kaseberg v Conaco [2017], which concerns the use of allegedly stolen jokes by late-night talk show host Conan O’Brien, will be of great importance due to the fact that it is first of its kind to deal with stolen jokes. As this article examines, it is likely to further demonstrate that the content within comedy is subjected to much weaker legal protection than one might expect.

The Basics of UK Copyright Law

Under Section 1(1) of the Copyright Designs and Patents Act 1988 (CDPA 1998), copyright protection can only be granted to a ‘work’. This can include creative works (literary, dramatic, musical or artistic works) and entrepreneurial works (sound recordings, broadcasts, typographical works and – as held in Norowzian v Arks Ltd [1999] – potentially films).

Furthermore, Section 3 of the CDPA 1998 requires that this work must be ‘fixed’ in a tangible medium of expression via a recording of the work, either in writing or otherwise. Meanwhile Section 153 of the CDPA 1998 outlines how the work must ‘qualify’ for protection, whether this comes via – as per Section 154 of the CDPA 1998 – the author of the work originating from the UK or other ‘extended’ countries, or via – as per Section 155 of the CDPA 1998 – the work having been first published in the UK or one of these other countries.

And, in the case of creative works, Section 1(1)(a) of the CDPA 1998 requires that the work be ‘original’. The tests for originality in English and EU law differ. The House of Lords in Ladbroke v William Hill [1964] 1 All ER 465, drawing on the decision in University of London Press v University Tutorial Press [1916] 2 Ch 601, held that the work must be the product of ‘more than trivial labour, skill and judgement. In contrast, the CJEU in Infopaq International v Danske Dagblades [2009] requires the work be the author’s own intellectual creation, which will be achieved where it reflects the author’s personality through – as suggested by the CJEU in Football Dataco v Yahoo! [2012] – the stamping of their work with their personal touch by making free and creative choices.

Where these requirements are satisfied, the author of the work will be granted copyright protection in their work, allowing them the exclusive right to exploit their work through acts like reproducing, distributing and performing their work. The most relevant type of infringement of this exclusive right will occur, under Section 16 of the CDPA 1998, where an unlicensed person copies the work, as elaborated on under Section 17 of the CDPA 1998. In order for this to be the case, the law has developed three requirements that must be satisfied:

  1. As required by Section 16(3) of the CDPA 1998, the reproduction must be either of ‘the work as a whole or any substantial part of it’.
  2. As held by Diplock LJ in Francis Day and Hunter Ltd v Bron [1963] Ch 587, there must be ‘sufficient objective similarity’ between the infringing work and the copyright work, or on a substantial part thereof. This requires, as held by the House of Lords in Designer Guild v Russell Williams [2000], consideration of the qualitative importance of the copied part of the claimant’s work and the overall impressions created by the two works.
  3. As confirmed by Denning LJ in Bron, there must be some causal connection between the copyright work and the infringing work (i.e. there was a possibility that the defendant could have had access to the claimant’s work) such that it is clear that the copyright work must be the source from which the infringing work is derived.

Application Copyright Law to Comedy

There will be no difficulty in demonstrating that a joke or entire comedic routine can be protected as a literary work. However, there can be clear challenges in demonstrating an infringement of this literary work, primarily for the reason that, as confirmed in Allen v Bloomsbury Publishing [2010], copyright provides protection for the expression of ideas but not the ideas themselves. Therefore, only the wording used by the comic in telling the joke can be protected – the concept behind the joke itself cannot be.

This is certainly justifiable: to be able to gain copyright over making jokes about a particular matter would be ridiculous – no-one would be able to discuss airplane food or crazy ex-partners ever again. However, pursuit of this policy has resulted in unfortunate consequences, namely that rival comedians are able to steal another’s joke by simply – in the words of Ellie Parker -‘dress[ing] it up in new clothes’. Indeed, as Dotan Oliar and Christopher Sprigman explain, rewording a joke will ‘write around’ and circumvent any copyright protection afforded to the author of the joke, allowing some comics to create entire careers from copying others. This in turn discourages creativity and effort by creators, which goes against the entire reason why intellectual property law exists in the first place.

For an example of this flaw in the system, consider the following jokes by American comedians Louis C.K. and Dane Cook about naming children. C.K.’s joke, first performed in 2001, reads as follows:

I’d like to have a kid because you can name your kid anything you want. I’d like to give my kid an interesting name, you know? Like a name with no vowels, maybe, you know? Just like … ‘FFFFFFFFF’ – just like 40 ‘F’s, that’s his name. ‘FFFFFFFFFFFFFFF, go clean your room.

Now consider Cook’s joke, performed in 2005:

I’d love to have some kids … I think naming them, that’s going to be fun. … I already have names picked out. … the first one that comes out, I’m naming it ‘RRRRRRRRRRR’. I think it’s beautiful, it’s feminine but strong at the same time. Time for bed, RRRRRRRRRRR.

These two jokes are undeniably similar: they discuss the same topic, follow the same structure and use almost identical punchlines. The main difference, however, is that C.K. used the letter ‘F’, with the elaboration of “clean your room”, whereas Cook used the letter ‘R’ in conjunction with “time for bed”. If C.K. were to take legal action against Cook’s performance of the joke, it is highly unlikely that the court would be able to provide any remedy – the jokes form a short 30-60 second segment of an entire comedy routine, and arguably have sufficient differences so as to separate one from the other. Legal action is thus rarely a viable route for comedians to take.

The Adoption of Alternate Norms

Oliar and Sprigman have noted that the failure of the law to provide protection in such cases has resulted in comedians ‘substituting [a] set of informal rules for the formal ones’. They discovered that comedians, as a collective entity, have instead adopted a set of social norms so as to allow them to resolve incidents of comedic theft without the use of the law.

Such norms initially involve private mediation between the parties, where the claimant approaches the alleged joke-stealer and tries to determine who has been doing the joke for longer. Ideally, some resolution will be reached between the parties – either the later user of the joke will agree to stop telling it, or they will limit their telling of the joke to certain geographic areas where the claimant does not work. Where no resolution is reached, however, further actions may be needed, perhaps ultimately ostracising the joke-stealer from the comedic community in an attempt to punish them for their conduct.

Most notably, however, the social norms adopted by comedians differ from intellectual property law in that the ‘comedian norms’ protect expression as well as ideas. This is certainly admirable: one of the key criticisms of copyright law is the difficulty in differentiating between ideas and expressions of those ideas. As identified by Pritchard J in the New Zealand Court of Appeal case Plix Products v Frank M Winstone [1985], though the author will start off with a basic idea, as he works on the idea and develops it he will – at some point – begin to give expression to his idea. Therefore, the exact point at which expression arises is difficult to determine, making the moment in which protection is granted uncertain. The method adopted by comedians of protecting both the idea and the expression removes this concern by providing informal protection from the outset of the creation of the joke.

The Difficulties of Protecting Comedy Routines

However, another aspect of joke thievery to consider is the concept of cryptomnesia (also known as ‘unconscious copying’), i.e. where a forgotten memory returns without it being recognised as such by the subject, who believes it is something new and original. Due to the focus placed on both ideas and expressions by the social norms, comedians that spend time and effort creating a joke they do not realise originated from another may still be required to drop the joke from their routine in order to protect the original creator of the joke. This could be seen as both harsh and generous: while it can undo serious time and effort put in by the former in order to protect the work of the latter, it allows the former to save face as they will be able to claim that they did not maliciously steal the content, and so will often face a punishment no more severe than being required to cease performance of the joke in question.

Another controversy of providing protection for jokes is that comedy is, to an extent, limited. As many comics focus their material on recent events or general topics, there is of course a likelihood that two comedians will independently reach the same punchline. Professor Perzanowski of Case Western Reserve University elaborates on this issue, making it clear that independent creation “does not mean [the comics are] copying from each other”. Furthermore, in an insightful video essay Will Schoder makes the point that “topical humour is bound to cause some overlap between comics” and that if you “listen to the opening monologues of several late-night hosts in a row … you’ll hear the same topics, the same set-ups and sometimes the same punchline.”

Therefore, applying a strict approach to protection of comedy would prove unfair to those that innocently discuss similar topics to another, even where they performed the joke only several minutes after the first to discuss the topic. As noted above, pursuing action against independent creation would prevent many from discussing topics of importance, resulting, to an extent, in a form of censorship: if a politician, for example, wanted to protect themselves from the criticisms of comedians, all they would need to do is be the first to joke about themselves, preventing anyone else from doing the same. This is absolutely not in the public interest: freedom of speech requires that people are able to comment and criticise as they wish, and a set of protective rules that are too stringent would certainly infringe this policy.

Conclusion

It should be apparent that a complete prohibition to make jokes about topics already discussed is not a proportionate response to the issue. A more flexible approach is needed: one that is able to differentiate between independent creation and outright copying.

The social norms discussed above appear to be the most appropriate method of achieving this objective. Comedians are generally willing to accept that they are likely to talk about similar things to others and so rarely confront another comedian about similar jokes, particularly where they take place in the same medium (like late-night talk shows). Further, though comedians will rarely admit outright copying, they are often willing to accept that they may have come up with the joke unconsciously (as occurred with the C.K. and Cook controversy, discussed above). This provides satisfaction to both parties: the original creator of the joke is held to be the actual creator, while the ‘joke thief’ is not required to admit any maliciousness on their behalf. Only rarely will a comic still refuse any liability whatsoever, at which point the more severe methods of dispute resolution such as ostracization will be threatened in order to bring that comic into line.

The social norms thus proceed on the assumption that ‘joke thieves’ have seen the original comic’s routine. It is important to note, however, that this assumption is done in a somewhat delicate manner: they provide the joke thieves with the ability to save face and claim that the copying was unconscious, encouraging comics to admit similarities and cease copying. This can be distinguished from the position of the formal law, where the comic may be required to partake in long litigation and pay a sum to meet any outstanding liabilities owed due to the copying. The social norms focus on comics treating one another with respect, whereas the formal law focuses on achieving results and finding fault – there is no grace or delicacy involved in the latter process, making it a highly undesirable option, particularly for a community in which comics are often working together and so should remain on good terms whenever possible.

This is perhaps the reason that the upcoming case of Kaseberg v Conaco [2017] is so alluring – as the first of its kind, it will be interesting to see how the American courts decide to handle litigation over allegedly stolen jokes. Though the case is outside of the UK jurisdiction, there are outstanding similarities between the UK and USA copyright regimes, meaning the case will certainly be of influence if a similar matter ever reaches domestic courts. Ideally, an approach similar to the social norms demonstrated above will be adopted as an approach that chooses respect over incessant litigation is, as demonstrated above, much more desirable. Of course, we have yet to see if this will be the case.

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Tagged: Intellectual Property, Justice, Media

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