About two years ago, famed British comedian Lee Hurst had a huge meltdown on stage for a reason any comedian would understand: he was trying to protect his “material” from being stolen by others. Except that Hurst just didn’t care how far he had to go to do so, including facing criminal charges. As it happened, Hurst was performing at a pub in Guildford, England, when he spotted someone in the audience who he believed was filming his gig with a cell phone in order to “steal” his material. Hurst angrily stormed off the stage and plunged into the crowd where he grabbed the guy’s cell phone and smashed it up.
Hurst said he acted to protect himself and his brethren of stand-ups. “I am talking on behalf of comedians and the stand-up community…there are thieves among the circuit, sadly… Nobody will protect us, we have to protect ourselves.” Hurst said that stand-up comedians should be protected by the same copyright laws that protect movies.
As it later turned out, the man was just sending a text message on his cell phone and Hurst was convicted and fined for causing criminal damage, plus court costs.
But “joke thieves” are a serious menace in the industry and Hurst is not the only comedian who lives in fear of his material being stolen by joke thieves. American comedians face a similar problem. No one would soon forget that nasty confrontation in a Los Angeles comedy club in February 2007, which was captured on video, in which Joe Rogan accused fellow stand-up Carlos Mencia of stealing material from him and other comedians. Comedian George Lopez later made a similar accusation against Mencia.
For starters, copyright protection would have been the biggest weapon a comedian would have against a joke thief. But the copyright law as it stands today isn’t exactly a knight on a white horse storming out of the gates to stand between the comedian and the thief. For instance, when a stand-up is on his feet at a comedy club doing his shtick before an audience the words of his joke have no copyright protection from joke thieves.
To make the joke thief liable, the comedian would actually need to obtain a formal copyright on those words from the copyright authorities after paying a fee. Even with a copyright, the comedian only seems to get a half-loaf of bread because the law only protects the very words the comedian has copyrighted and nothing more.
This means that as long as the thief avoids using those very words in the copyright, he is able to steal the circumstances and connections that were carefully crafted to give rise to the “kill” lines in the joke. The problem here, especially in the world of comedy, is that lines in a joke make their most meaning when attached to the circumstances or the idea that accompany the words. This gives comedy a smaller degree of protection than what movies get because the actions of characters in a movie and the circumstances surrounding those actions are protected from infringement.
True, many analysts have made a big deal of what they call industry “peer pressure,” which is the sense that honor and good manners among comedians require that no one “steal” material from the other. To be sure, the stand-up community takes this matter pretty seriously and would snub and ostracize comedians who develop a reputation as joke thieves. Sometimes it could be the kiss of death for the career of the particular comedian at fault.
But to think that peer pressure alone can keep a comedian’s “material” out of the hands of a joke thief, who has a chance to steal it and feels he can get away with it, is sort of like assuming that people will avoid sinful behavior for fear of going to hell when they die. More protection ought to be offered against joke thieves.
And the place to begin is the copyright law. Although its goal is protecting original expressions of ideas, the way the copyright law treats what “original” means in the world of comedy ends up leaving comedians with less protection than they need. It just doesn’t go far enough. So, to protect their material from joke thieves, the unfinished business for comedians today is to push for a change in the copyright law to give comedians automatic copyright for material they use in stand-up performances before an audience, and to protect the material in a package, including the circumstances, ideas, and connections that make up the shtick.