No laughing matter: When comedians steal jokes, the punch line can be brutal

Heard the one about the comedian who “stole” a joke? I don’t suppose you regularly visit Chortle, a site that’s seemingly aimed at British comedians. So you probably haven’t heard the story about the famous TV host and comedian who was sued for copyright infringement.

According to an article by former lecturer and stand-up comedian Ollie Horn, the TV host and comedian Conan O’Brien was sued for copyright infringement for stealing one-line jokes from the blog and Twitter account of another comedian. 

This really was no laughing matter – the aggrieved comedian claimed damages in the sum of $600,000. O’Brien’s defence was an interesting one – one that’s described in the posting as “parallel thinking” as opposed to copying. But although O’Brien denied that he had copied the jokes, he chose to settle out of court. He also issued this short statement: “Short of murder, stealing material is the worst thing any comic can be accused of.”

This story does provide us with a good excuse to look at some of the basics of copyright law.

It’s important to understand that copyright can exist in a range of things; the law refers to them as “works”, including literary works, musical works, artistic works, films, sound recordings, broadcasts and computer programs. These tend to cover all of the bases – as an example, the joke which forms the subject of the litigation is considered a type of literary work, a category that is defined in South African law to include both “stories” and “dramatic works”. 

A good follow-up question may be whether a joke has to be any good in order to enjoy copyright? The answer’s no – the law simply requires a work to be original. This may sound like a high bar, but in fact it isn’t. For the purposes of copyright law, the word “original” simply means that the work must not have been copied from another source – some quaint old-fashioned expressions are sometimes used here: one goes along the lines of the work must be the “fruit of the author’s labours”, another is that the work must be the “sweat of the author’s brow”. This test is distinct from, for instance, the “novelty” requirement under patent law, which can be a high hurdle to clear.

So merit or quality is not a requirement for copyright to exist. A really poor joke that is original and not copied will pass muster. But how do you assess originality?

A South African court considered the issue in the case of Waylite. The court said that the work “must have a quality of individuality not necessarily requiring intellectual novelty or innovation, but which is at least sufficient to distinguish the work from the merely commonplace. It must be apparent from the work itself that the author has made such a contribution. The standard required is not high and it is not capable of precise definition. It is a matter for judgment according to the facts of a particular case.”

Incidentally, in the Chortle article the author raises the issue of whether a two-word Jimmy Carr joke would pass muster – in other words, whether it involved sufficient labour. The joke: “Dwarf shortage.” There has even been debate, and I use the word in its loosest sense, whether single words may qualify for copyright. The example used: “Jabberwocky” of CS Lewis fame.

A further requirement for copyright protection is that the work must exist in a material form. This means that the work must be written down, recorded or otherwise reduced to a material form – in the old days, this typically meant a book or publication, but these days a tweet or blog post are entirely sufficient. This general concept is often expressed as follows: “there is no copyright in ideas” – a completely separate rabbit hole to go down.

Central to copyright is copyright ownership. The first owner of the copyright is the creator or author of the work. Various important exceptions exist and these relate to works intended for publication, works that have been commissioned, computer programs, works created within an employment situation and the like.

A work of copyright will be infringed when an unauthorised person carries out a restricted act, such as to reproduce the work in any manner or form, perform the work in public, or make an adaptation of the work. In order to constitute infringement there must be copying of a substantial part of the work which is typically a qualitative rather than a quantitative investigation.

The rights we’ve discussed so far are sometimes described as “economic rights”. There is a further sub-category of rights in play when discussing copyright, referred to as “moral rights”. These rights include, for instance: the right of paternity, in other words the right of an author to demand that his authorship is acknowledged; and the right of integrity, which is the right of an author to object to any distortions, mutilations or modifications which are prejudicial to their honour.

Moral rights are yet another rabbit hole that perhaps merit a separate article.

While the crux of this article is, well, a joke, copyright is a very serious matter and in our practice we find that some of the most misunderstood IP drivers in transactional matters relate to copyright, its ownership and its exploitation. This is particularly true for transactions relating to software or similar tech developments.

This misunderstanding can have significant commercial impact on transactions of this nature. DM 

André J Maré is an executive in the Intellectual Property Department at law firm ENSafrica.

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