Former law lecturer and stand-up comedian Ollie Horn explores...

Conan O'Brien said: ‘Short of murder, stealing material is the worst thing any comic can be accused of.’

It's the first bit of circuit etiquette that you pick up as an open spot comedian: every one of your routines had better be original. If not, at best you'll get a friendly tap on the shoulder from a more experienced act. At worst, you're never playing that club again.

Not many comics know what the law says about joke theft. Instead, the comedy community has developed its own ways of preventing plagiarism, and settling disputes when they do, infrequently, arise. It's cheaper and quicker to besmirch an act on a Facebook group than instruct a lawyer to send a letter. And way more fun. 

But comedians, as writers and performance artists, are the people that copyright protection is for. The theory goes that people wouldn’t bother making new things unless the law helps them make money from them. 

Giving the creator the right to decide who can reproduce their work means they can either monetise their work themselves, or sell that right of reproduction to somebody who knows how to make money from it. 

Conan O'Brien volunteered to denounce joke theft because he was being sued for more than $600,000 after his writing team were accused of copying one liners from another comedian's blog and Twitter account. Conan emphatically denied the allegations, claiming that the jokes in question must have been the product of parallel thinking, and eventually settled out of court. He is one of just a small handful of joke-theft defendants in cases in the US legal system. In the UK, as far as I can tell, there have been none that have gone to court.

But just because judges haven't been burdened with two comics squabbling about whose joke is whose, it doesn't mean that there aren't countless unresolved disputes—usually between circuit comedians and an outsider.  

Only last month, comedians Darren Walsh and Mark Simmons accused twitter account @dadsaysjokes of publishing their one-liners in a stocking-filler joke book without attribution and without their consent They say they had never knowingly stolen jokes, but compile anonymous user submissions, and claim that even when they do try to research a joke's provenance, there are typically competing claims to it.

But @dadsaysjokes is one of literally thousands of accounts republishing jokes and content without attribution or payment, and their practices are so commonplace, it’s understandable if they think they are doing nothing wrong.

Although one-liners are treated like pick ‘n’ mix sweets—like the rules of theft don’t apply as normal – they represent only the tip of the iceberg.

Video clips, sketches, and creative ideas are frequently re-published online for profit without attribution. It’s an open secret that there are after-dinner speakers and acts on cruise ships doing club comedians’ routines wholesale. ‘Great minds thinking alike’ between circuit acts and mainstream television seems to happen curiously often, from a spoof African dictator to a mime act with song lyrics as cardboard letters all facing accusations of plagiarism. 

I thought it’d be helpful to dust off my old law textbooks and take stock of how the law might protect what we as comedians do. 

What does copyright protection actually do? 

If you have copyright in a work, you actually get two bundles of  rights: economic and moral. 

The economic rights are the ones you'd expect, like the right to reproduce, broadcast, perform, translate, or communicate the work. The right extends to telling people that they can’t do these things without your permission. These rights are the ones that you sell when you have a licence agreement, say with a publisher, or a video streaming service. 

Additionally, you receive a bundle of so-called ‘moral rights’ which help you manage your reputation as an author, and ensure your work continues to be used as you expected.

The moral rights include the right to have your name attached to your work (and preventing the wrong name being attached to it), and a limited right to prevent distortion or modification that damages your reputation. This means if you perform a bit on a TV show and they edit it to death so it makes you look rubbish (when you weren’t), in theory you could stop it from being broadcast by asserting your moral right to object to derogatory treatment of the work, providing you hadn’t signed these rights away. Monty Python won a case using similar law in the USA against a broadcaster who was showing edited versions of their shows. 

What happens if somebody infringes these rights? 

You may persuade a court to injunct them to stop infringing any of your economic or moral rights, and usually pay you some money. How much money depends hugely on the case, but a good starting point is thinking how much whatever has been copied from you would be worth if you licensed it, and your award should in normal circumstances be at least that. 

A good first step would be to avoid the legal system altogether and simply ask for what you want yourself directly. If that doesn’t work, then the next step would be asking a solicitor to follow the English law ‘pre-action protocol’, by writing a letter saying that you’re unhappy because you think your work has been copied, and asking for their side of the story. This often leads to a resolution, and your legal fees will be in the hundreds not thousands of pounds. Failing that, you go to court. Remember, if you win your case the other side may be ordered to pay the majority of your legal fees, if you’ve played by the rules. 

Using a lawyer isn’t as costly as you might imagine. You can find a solicitor that specialises in media and intellectual property law from the Law Society search engine. Most will offer a free consultation, and won’t charge you anything until they formally agree to represent you. Some may even defer their fees until after the case is over. A solicitor is required to tell you their fees in advance. They vary considerably from firm to firm, so it’s fine to get quotes from a handful of firms. 

So I can copyright my jokes?

The simple answer in most cases is yes, and the surprising thing to many comics is that your jokes already enjoy copyright protection. Copyright protects ‘literary works’ (any writing, in any language), ‘dramatic works’ (anything with movement like a sketch, a mime or a slapstick routine), and ‘musical’ works. Basically everything you publish online or perform live in a comedy club will fall into one of these categories. 

Unlike if you get a patent for an invention, or if you trademark your company name, stage name, or catchphrase, where (in most cases) you need to fill out registration forms and make an application to a government agency, copyright protection is automatic in the UK if you meet the criteria.

What are those criteria? 

The main criterion is that the joke is ‘original’. Originality hasn’t been defined in UK legislation, so it’s up to a judge to decide if your joke is ‘original’. But the bar is set relatively low, since originality doesn’t mean true novelty, but rather that the joke is your own intellectual creation. In practice, this means if you came up with it yourself, and have put some fair effort into the writing by making creative choices, then it’s copyrightable. A judge might ask themselves if an audience would think it’s something new and clever. If so, it passes the test. 

Additionally, because copyright law protects the expression of ideas, rather than the ideas themselves, the most important thing is that the joke or routine is ‘fixed’, or recorded somewhere. This can mean it’s written in a notebook, published on the Internet, or even recorded on a voice memo app.

Put simply, you riff a line while on stage, you don’t have copyright protection for it, but if you record your set on your phone then you have a sporting chance of copyright if the line meets the other requirements. 

Why do I see the © symbol all the time? 

It’s highly recommended as a way of asserting your rights. It’s best practice to put it at the bottom of scripts, treatments, and at the end of videos you publish, with your name and the year, to show that you intend to protect your work. 

Because copyright protection is automatic if you meet the requirements, not having it doesn’t mean that you’re not protected in the UK. Using the symbol does however act as your international copyright passport under the Universal Copyright Convention for protection in other countries. It costs nothing to use, so there is no harm in adding it. 

Does it need to be a good joke/sketch/script? 

So long as it meets the ‘originality’ test, then no, since how would a judge ever decide on artistic merit? There is however  a debate among lawyers about how long a sentence needs to be to get copyright protection.

The leading case in the EU court said an 11-word sentence could qualify for copyright protection, but so would a shorter sentence, provided that whoever wrote it had put creative effort into it, leaving individual member state courts to decide case by case. 

Jimmy Carr penned a two-word joke (‘dwarf shortage’), which considering it was the product of his skill and judgement, may theoretically meet the requirements of the ‘originality’ test, so a functional joke of any length will potentially be copyrightable. 

What if two comedians both independently come up with the same joke?

Here, the law is very clear. If two people come up with an identical joke that meets the copyright criteria, they will both have copyright to their joke, and they can’t prevent each other from telling it, even if one of them clearly came up with it first. 

If somebody else does the joke, then it will be for the person claiming infringement to prove, as an evidentiary point, that the accused plagiariser had access to their version of the joke. 

Of course, the question now is how do you prove that it was independent thinking, and not plagiarism? A court would take into account all of the facts, and decide on the basis of a balance of probabilities, whether the accused plagiariser would have had access to the other joke, and judge according to the level of similarity and complexity of the two works.

How do I prove that an idea is mine?

Remember, copyright only protects the expression of ideas and not the ideas themselves. So if you have an idea for a routine about how dogs are better than cats—no matter how hot your take is— that wouldn’t qualify for protection, and you can’t stop anybody else from doing it. You’d have to write this routine down, or record it somehow to be protected. Even once you’ve done this, you still wouldn’t have ownership of the premise. 

This is because the law says it’s fine to be inspired by other ideas. You only infringe somebody’s copyright if you take a ‘substantial part’ of the original work. But this isn’t judged by quantity alone, but also quality. So cherry-picking the best part, even if it’s only a few sentences, may still count as having taken a ‘substantial part’. 

You may hear a comic do a routine about how cats are better than dogs, and come up with a reverse take. You may even incorporate a couple of the same examples. Being inspired by somebody else’s joke will not prevent your joke from having full copyright protection yourself, nor will it mean you’ve necessarily infringed their rights. 

What if someone offers a tag for one of my jokes?

Circuit convention is that if somebody volunteers an improvement to your joke, then it’s still ‘your’ joke. By contrast, copyright  law has a doctrine of ‘joint authorship’, meaning that if two or more people collaborate on the creation of a work, then they are both ‘authors’ in the eyes of the law, and share the copyright. 

So, if you had outlined the plot and characters of a sitcom, and your friend wrote the dialogue, then your friend can’t claim that because she was the one that finally wrote it, that she is the only copyright holder, for example. 

But, if you already had a fully-formed routine, and somebody else later suggests some improvements to it, then you’d still have your copyright in your original routine, and there may be an additional copyright for the improved routine that you both share. 

If you’re worried about sharing your ideas with people, you can label the materials ‘in confidence’, in order to have a chance to rely later on the law of confidence as a fallback, in case of a dispute. 

What if I do a day’s writing for another act? Who has the copyright? 

You would have copyright in the jokes, and this copyright would be licensed to whoever bought the material. Typically, you’d also agree to waive your moral right of authorship in a simple contract. 

Can I stop people from filming me? 

Yes. Video or audio recording a copyrighted work without your permission is infringement. 

Somebody from another country is doing my routine, can I stop them? 

Any country that has signed up to the Berne Convention (basically every country) will respect your UK copyright rights, so in theory, yes. Even if they are performing your routine in another language. You’d probably have to sue them in the country they are performing in, though, or, if it’s a video that’s infringing, you could pursue action in any country that the platform has servers in. 

How can I protect my comedy character? 

Comedy characters present some difficulties. Aside from the material following all the usual rules, the idea of a character wouldn't be protected. You can’t get copyright in a costume, but only unique non-functional individual elements of it. You could register to trademark the character’s name, costume, and catchphrases (you can do this yourself online for £200 per registration), to get some protection. 

Even if you don’t have a trademark, if somebody else does an act similar to yours (not obviously flagged as a tribute act), and you are high profile enough that their audience mistakenly thought they were seeing you instead, then you might try a claim under the law of ‘passing off’. 

What if I want to tweet somebody else’s joke, but honestly don’t know who told it first?

There’s nothing to say you can’t do this, but if somebody did come forward saying that you breached their copyright, a judge would expect that you’d made reasonable efforts to identify the author before publication. 

Museums often have exhibitions where they display work or play multimedia where they’re not sure of its origins (copyright lasts for 70 years after the author’s death, so some pretty old stuff is still copyrighted). These situations may be managed by putting up a sign saying that they’ve tried their best to identify the copyright holders, but they’ll rectify any errors as soon as possible once made aware. 

If you haven't taken these steps, then it’s likely you’d have to pay damages. Although it’s never happened with jokes on the internet, in similar cases where photographs have been republished without the photographer’s permission, judges have awarded claimants remedies such as a portion of profits from the work, a typical licence fee for a photograph, and damages for lost opportunities. 

This may be what the law says, but it’s obvious that it’s not always being followed. The only people that seem truly outraged by joke plagiarism are other acts. Maybe it’s not clear to outsiders quite how much time, work and even money goes into creating even one dependable joke. 

It’s not always about money either. Comics put online content out for free with hopes of building a following to sell tickets to live shows, or prove the existence of audience appetite for a project. If people don’t know it was you who made it then why bother? It’s incredibly difficult to build an audience, and it’s heartbreaking to see your unattributed content wizz around the internet without any means by which potential new fans can know who you are.

What’s more, once material hits a large enough audience, the original creator potentially suffers the indignity of having to defend themselves against accusations of having stolen their own jokes. Practically, this often means never doing their routine again. 

Stealing material may be the worst thing a comic can be accused of, but it’s clear that not everybody who profits from our work thinks this way. Be assured that the law appears to give us greater protection than we might think. 

• Ollie Horn (@olliehorntweets) co-hosts the Japan By River Cruise podcast every week. 

I am extremely grateful to Angela Jackson (Solicitor, independent media lawyer); Richard Hodgson (Barrister at Design Chambers); and Dev Gangjee (Professor of Intellectual Property Law, University of Oxford) for their invaluable assistance in the preparation of this article. All errors are my own. While I've done my best to make sure I've represented the law accurately at the time of publication, none of the above should be considered legal advice. 

Published: 15 May 2020