Recently, headlines rocked the tech world claiming that Twitter was deleting stolen jokes on copyright grounds. Twitter user @plagiarismbad had noticed a series of tweets that were marked as “withheld” by twitter that appeared to be plagiarized versions of an earlier joke.
Indeed, it turned out that freelance writer Olga Lexell had written the original joke and several users, rather than retweeting or otherwise attributing the tweet, had instead copy/pasted it as their work. Lexell, using the Digital Millennium Copyright Act (DMCA) had the tweets removed.
All in all, an author using an established copyright process to get several plagiarized tweets removed wasn’t exactly life-changing.
However, soon after Lexell’s headline broke, a similar story involving Twitter came to light as Conan O'Brien, along with many involved with his late-night show, were sued for copyright infringement over allegedly stealing jokes from Twitter.
The lawsuit came from professional comic writer Robert “Alex” Kaseberg, who wrote for The Tonight Show with Jay Leno for 20 years. According to the lawsuit, O’Brien had lifted several jokes from Kaseberg’s Twitter feed, almost verbatim.
For most of history, lawsuits and legal action over plagiarized jokes jokes have been fairly rare. Though Jay Leno and other comedians filed suit in 2006 over a book published by Judy Brown that contained jokes from them, the jokes were attributed. That lawsuit was settled in 2008, with Leno and the other plaintiffs being seen as the victors.
Other cases involving plagiarized jokes have been less litigious in nature. In 2007 when comedian Joe Rogan accused a fellow comedian of ripping off parts of his act, he did so on his blog and on stage. Though the case became a public spectacle, it never entered the courts.
Part of this is because of the nature of jokes. Jokes are an inherently social medium, a largely oral tradition that’s been traditionally passed from person to person without much attribution. Think of the last time you re-told a joke from a friend and whether you attributed it.
Increasingly though, jokes are big business and it’s not just comedians and writers cashing in. YouTube, social media and blogs are all business opportunities for those with a funny punchline.
This increased competition, has led to both more plagiarism of jokes and a growing number of clashes over plagiarism, some of which are winding up in the courtroom.
However, court battles over plagiarized jokes are going to be difficult. Copyright doesn’t protect the idea of a joke, which is often the most important part. Instead, copyright protects the expression of that idea.
So while lifting a joke verbatim may be a copyright infringement, simply retelling a joke in your own words probably is not.
In the end, it’s likely we’re going to see more lawsuits testing this idea/expression dichotomy when it comes to jokes. As commercial interests increasingly clash with an oral tradition, we’re going to see more and more activity in the courts.
However, the comedians and writers who go down this path will likely learn that, though they have a profession that is every bit as creative as any other artistic field, that their work, because of its nature, will be more difficult to protect.
For better or worse, plagiarized jokes will likely always be a part of our culture in some way, especially around the water cooler.