Many years ago (mid 70’s to mid 80’s) I had my own morning radio show, and I wrote my own comic material.
One morning, as I took over after the midnight to 6 guy, I mentioned (according to my script) that “Bob” had once again treated me to some early morning aroma (we couldn’t say “fart” in those days).
So my patter went, “I wish Bob were a little more anal retentive, but instead he’s chronic anal explosive!” I was taking a psych course at the time, so I know the word is “expulsive”.
So recently I see a TV promo for an upcoming detective series with a black guy and a white guy who don’t get along, but are a great team.
So I’m listening and watching and I hear my joke: “You’re anal retentive!”. "And you’re anal explosive! “You made that up!” “No I didn’t” etc., etc.
MY Joke!
Because many DJ’s moved around a lot looking for higher-market stations (more money) we were always recording “air checks” (telescoped samples of our shows) to submit to those stations.
I have that air check and it mentions the date and the time (for the prospective Program Director’s convenience).
So if I wanted to sue for plagiarism, do I have a case?
Quip-author Ashleigh Brilliant has successfully sued for copyright infringement over works (if I’ve counted correctly) 11 words long. So in principle, it might be possible.
In this particular case, though, I expect that the writer of that episode would claim either that he came up with it independently himself, or that the joke’s been out there for so long that it’s impossible to track down the origin, and in either case, it’d be very difficult to rebut that claim.
And it probably wouldn’t work for me anyway, because whatever lawyer I’d ask to represent me wouldn’t do it Sonny Bono. (* Pro Bono*, of course and something I heard a long time ago watching a stand-up routine.)
Tough to attribute isn’t it, and why would you want to acknowledge it anyway if it weren’t your work?
I have a bunch of registered letters sent to myself left unopened containing songs/poems I’ve written, which I believe is the “poor man’s” way to copyright one’s work, but how to claim a joke as one’s own?
To start with, copyright covers only those expressions of creativity put into tangible form. It does not cover conversation. Whether it would cover an ad lib on radio might depend on multiple factors, like whether an air check counts. I don’t remember any cases on that but IANAL.
The timing may also be a problem.
You may therefore have an automatic copyright over the statement, unless it was in your early years. But since you didn’t register the copyright you don’t have the right to sue. At best you could force the network to stop running the promo. (Note that Ashleigh Brilliant’s won his lawsuit in 1979, which means his work was created under the earlier law, and he had registered his copyright. He hasn’t won a case since and I don’t think anybody else has for short phrases. He’s a precedent and an anomaly at the same time.)
And you certainly won’t win because any lawyer will argue that the joke is so obvious that there is certainly a prior source and that your exact words were not taken.
Just as a footnote, poor man’s copyright doesn’t exist. No court case has ever found that mailing oneself material is a valid defense.
Basically, registering your material with the Copyright Office is everything.
For the very good reason that there is nothing to stop you mailing unsealed envelopes to yourself, and then sealing anything you like into them at a later date.
IANAL (but my father is a retired patent lawyer), according to my reading, at least for a written or packaged work, putting “Copyright <that year> <circle c>, <copyright holder name>, all rights reserved” carries protection. Not as ironclad as registering, but the work has some level of protection if at least this is done. But, yes, registering is better.
Thanks for sharing that attitude. I need to work on that… had a comic strip “in development” with a newspaper syndicate for ages, making lots and lots of changes for them, and then they said “Never mind. Sorry. Turns out we don’t need it.”
And next year, they came out with a strip close to mine. And the title character had my (not all that common) first name!
But it probably was just coincidence. I like the idea of being “bemused”, as opposed to “bitter, vengeful and immature”.
I’m not a copyright lawyer, or even related to one, but I did, once upon a time, contribute jokes on a freelance basis to a radio programme.
This was a topical, news-based show, with dozens of freelancers like me submitting material every week based on the same news; so inevitably the producers would end up with several, independently created, variations on the same gag to choose from. On quite a few occasions, I heard jokes that were very similar to what I’d sent in, but for which I was neither credited nor paid. There was no plagiarism involved, it was simply that another writer had gone through the same thought process as me and ended up with what was, essentially, the same gag, only worded differently (i.e. funnier).
The bottom line, I think, is that jokes are, or can be, subject to copyright; but, since (as I understand it) it’s not possible to copyright an idea, but only a particular expression of an idea, it’s the exact wording of the joke that would be protected (when I was credited and paid by the radio programme, the joke, as broadcast, was word-for-word as I had written it).
So, Quasi, I’d say that even if you can establish authorship of your original gag, it doesn’t look like the line in the TV promo infringes on whatever rights you might have in it: it’s just a different gag based on the same idea.
There is an awful lot of joke stealing among professional comedians. Do any of them ever sue? It seems like the more popular retaliation is to publicly berate the joke stealer.
In 1986 the law changed to do away with the need to put a copyright notice on anything. Before then, the omission of a notice was sufficient to put works into the public domain. But for the last quarter century, your work is automatically copyrighted. No notice is ever needed, even though it is the custom to do on formal works. Your post and my post and Quasi’s post and all the other posts are fully and equally copyrighted even though we haven’t used any form of notice.
Registration is now the only action you as a user can take. It is better, because it’s everything.
I’d guess it would have to be a pretty blatant and outrageous theft (like passing off an entire routine, verbatim) to make it worth legal action. The monetary value of a single joke (when you can even put a concrete figure on it) is probably pretty low, most of the time.
In the example in my earlier post, I was submitting gags to a popular, long-running show on the UK’s most listened-to national radio station, and the fee at the time was £7.50 per joke (plus 65% extra for the Saturday repeat, which is not to be sneezed at). This was back in the 80s, of course, but it gives you some idea – even in then it would have cost more than £7.50 to have a lawyer tell you the time of day.
The most widely-known case of comedian plagiarism I can think of is Carlos Mencia, who has been accused by several people of basically not have any original material at all. It seems there hasn’t been any legal action taken against him. I wonder if the unspoken rule among comedians is that they’ll take their accusations public rather than go to court.
Well, he could register it now and seek damages for any alleged infringement from this point forward.
Yes, this is the bottom line.
It’s not that comedians have decided not to sue. It’s that, as WotNot suggests, comedians usually don’t have a valid claim under copyright law, because their usual complaint about someone like Mencia is that he stole their ideas, which are not protected under copyright law.
