By Michelle St. Germain
I just flew in from Boston, and boy are my arms tired! ©
What do you call a thousand lawyers at the bottom of the ocean? A good start. ©
With jokes as bad as these, we do not think of them as property. They are about as common as the air we breathe, for better or for worse. But that does not mean that jokes are not intellectual property.
I grew up on reruns of the Three Stooges on Saturday mornings, Eddie Murphy, and George Carlin stand-up (which I think was part of the reason my mother cancelled HBO). My brothers and I tried to find ways to watch Saturday Night Live, which aired past our bedtime. Eventually, my brother got a five-inch black and white TV screen on a boom-box for Christmas, but ironically, we fell asleep trying to watch it.
Comedy is still hugely important in my life. One of the sayings I live by is “Laughter is the sound of thought.” Comedy — good and bad, slapstick and witty — always has something to say, and so does the laughter that it draws.
Pop music and Beach Boys favorites have a much smaller part in my life, but lately the music industry draws lawsuits like moths to a flame. I heard recently that the Beach Boys thought the creative integrity of the “California Girls” song had been compromised. Evidently, Snoop Dog ended a collaboration in Katy Perry’s “California Gurls” song saying something like “I really wish you all could be California girls.” The line echoes the familiar refrain in the Beach Boys’ “California Girls” song. Don’t worry, I’m still sleeping at night.
While it seems like we’re constantly hearing about music industry litigation, a comedian will rarely sue another over stolen material. In “Intellectual Property Norms in Stand-Up Comedy,” an article soon to appear in a University of Chicago Press book, the authors investigate the reasons behind this non-litigious phenomenon and conclude that the protection of traditional intellectual property does not neatly apply to joke stealing. Dotan Oliar & Christopher Sprigman, 94 VA. L. REV. 1787 (2008). Joke stealing is not synonymous with copyright infringement.
Part of the reason is that copyright protects expression, not ideas. But without the idea behind the joke, we wouldn’t be laughing. Trademarks might help a comedian protect his or her set, but it’s not common. Jeff Foxworthy sued a T-shirt manufacturer for using the tagline “you might be a redneck”. Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200 (N.D. Ga. 1995). Foxworthy prevailed, and if you’ve ever seen his routine, you would know why. He says that line after every joke. But it is unusual to have a comic that has a tagline that’s as distinct and as integral to his or her comedy routine.
You would think that without proper legal enforcement tools, you would have comedic anarchy. That is not the case. Oliar and Sprigman suggest in their article that the comedy circle norms helps prevent joke stealing and encourages creativity. Oliar & Sprigman, supra at 1812.
What the article does not suggest is that if someone other than the Three Stooges appropriated “Nyuk nyuk,” that it just wouldn’t be funny. What I am suggesting is that there are norms even beyond the comedy circle to the comedic audience. Is it really the same when anyone other than Jerry Seinfeld says, “What’s the deal with that?”
An audience’s response to a copied joke probably sounds like a lone cricket. We, as the comedian’s jury, may be harder on any copycat than the comedian’s peers.
I will admit for the sake of argument that if you don’t know a joke is stolen, it can be funny. But once you find out that the comedian you saw the other day was repeating someone else’s joke, it not only makes that joke not funny, but the comedian’s entire set is suddenly bad. It might even ruin that comic’s entire reputation.
Perhaps a jury being biased against the copycat is good for comedy litigation – at least for plaintiffs (because that’s just how I think). And of course, it’s good for creative comedy.
If comedians did want to start suing for theft of material, I’m sure that there would be plenty of lawyers available. Especially if someone wants to bring an action against everyone that has repeated the old lawyer and the ocean joke. The only problem with that suit would be locating the plaintiff. Someone has to claim they created the joke. Any takers?
Under Analysis is a nationally syndicated column. Michelle St. Germain practices law in St. Louis, Missouri. You may direct comments or criticisms about this column to the Levison Group c/o this newspaper, or direct to the Levison Group via e-mail, at comments@levisongroup.com.
© 2010 Under Analysis L.L.C.
