Recent allegations against Amy Schumer have surfaced that she steals her material from other stand-up comedians and uses them either in her stand-up routines or on her television show. Comedians Wendy Liebman, Kathleen Madigan, and Tammy Pescatelli have all accused Amy Schumer of stealing their jokes. Evidence from recorded stand-up shows have started to surface, but Amy Schumer still denies the allegations.
Comedians often take their grievances about joke theft to the public as a way to chastise and embarrass the alleged thief. But aside from gaining a bad reputation for joke theft in the comedian community, are there any legal issues that can arise?
Is Joke Stealing Copyright Infringement?
Copyright is the right to prevent others from using your original work without permission. Copyright is protected by federal law, which entitles an author to several exclusive rights, such as reproduction and distribution. If those rights are infringed upon, then an individual may be able to sue for copyright infringement. However, lawsuits for joke copyright infringement can be costly and difficult to prove.
The federal statute and case law determine what type of material is eligible for copyright protection and to what extent it is protected. A copyright protected work must be “an original work of authorship fixed in a tangible medium of expression.”
Copyright protection does not include ideas. General ideas and elements are usually considered fair game, but original, detailed expression may be protected. This idea-expression dichotomy can make it difficult for comedians to prove that others have stolen their jokes.
According to Slate, when Ari Shaffir accused Carlos Mencia of stealing a joke about building a border fence to keep Mexicans out of the US, it was discovered that D.L. Hughley and George Lopez also told similar jokes. Since there was news regarding border wall proposals by politicians, there was a high likelihood that several comedians came up with similar jokes on the subject. The idea of the border wall is not copyrightable material, and the expressions of that idea from all four comedians were too general to receive copyright protection.
Another issue with proving copyright infringement is proving how the accused gained access to the original work. The freshness of jokes usually stems from making fun of current events and popular culture. Sometimes comedians may come up with ways to express these jokes that appear similar. Copying may not be actual copying; instead, comedians may be arriving to similar expressions through sheer coincidence.
Accusations about joke stealing may run rampant, but successful lawsuits about joke theft can be rare. In one successful legal battle for jokes, Jay Leno, who himself has a reputation for stealing jokes, sued author Judy Brown for stealing his jokes and publishing them in joke compendium books. Brown had taken material from Jay Leno and other comedians to add to her joke books.
The parties settled out of court, and Brown was forced to publically apologize for stealing the jokes. The success of this lawsuit may be due in part to the publication of those jokes into book form, or to the advertising slogans that suggested the book had famous comedian jokes.
Joke Stealing and Online Protections
Traditionally, jokes told in comedy clubs are more difficult to prove as copyright infringement. However, there may be a trend where jokes told online may have their protections enforced by service providers.
Since 2015, Twitter has been cracking down on “tweet-thefts”—when Twitter users fail to include an attribution to the original poster and are reported – by removing the tweet and replacing it with a notice and takedown response.
Under the Digital Millennium Copyright Act (DMCA), online service providers are granted a “safe harbor” from copyright infringement liability if they have a procedure in place for notice and takedown of infringing material. When someone reports that another Twitter user has posted infringing material, Twitter automatically takes the tweet down.
Although the online notice and takedown mechanism were supposed to stop copyright infringement generally, it basically prevents jokes from being retweeted without proper credit. Comedians may be heading online to reach larger audiences, but they may also be online because the DMCA better protects their material from theft.
Authored by Emily Yu, LegalMatch Legal Writer