I occasionally draw comics in my spare time, which are often based on my real life conversations. Recently, after drawing one such comic, I was attacked (though undoubtedly in a pure backslapping fun way) for having stolen the joke in the comic from the person I had had that particular conversation with. In his words, "Rip-off!" sans credit. After a mega verbal pseudo-war, I had to finally acknowledge and give him credit for the comic. This incident got me thinking about the entire idea of copyright in jokes, because I certainly wouldn't want to be stealing from anyone.
Indeed, the joke-stealing issue is not new. I recall an episode from the popular TV series Friends, where Chandler is accused of stealing a joke, albeit a rather unfunny one from Ross and managing to get it published in Playboy. In real life talk show host Jay Leno successfully led a bunch of comedians against a humor editor for "joke theft". Funnily enough, earlier this year allegations cropped against Leno himself for ripping off humor from elsewhere. So when can a joke really be deemed "original", and when can one have copyright over it?
A person acquires automatically copyright in all original works which he creates. In this regard, it is often said that there lies no copyright in ideas, but only in expression, which is commonly known as the idea-expression dichotomy. So in order to judge if copyright can be exercised over a joke, one needs to know whether a joke can be classified as an idea, or an expression?
So, where is the joke?
To be able to tell if a joke is an idea or an expression, we need to know where exactly the element of a joke lies. Is it just the idea, or the way I present a joke? It is a bit evident that expression plays a big role in making a joke when we find a joke made by Russell Peters funny, but when my self-pompous neighbour makes it, it is mostly lame. An noteworthy observation is made by comedian Jeff Foxworthy while testifying in the U.S. case of Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1217–1219 (N.D. Ga. 1995).
"A joke is [...] a strange thing. And probably to the public, they never realize this. But I have-with a comic, we all have the same bowl of words to work with, and the whole trick is to take the smallest amount of words and put them in the proper order. You know, I've sat backstage with Jay Leno or Gary Shandling and sometimes for ten or fifteen minutes argued about a particular one line in a joke, which word should go where, should you delete this, which word should go to the end of the joke, and so that's why it changes. I mean, it's to get the maximum laugh from, you know, the shortest amount of material."
The Court agreed with this idea of the value of a joke lying in the expression rather than the idea, saying, "In the same way, two entertainers can tell the same joke, but neither entertainer can use the other's combination of words. This is where defendants' argument misses the mark. Copyright is concerned with the originality of the expression, not the subject matter."
Thus, as long as the words you use to say a joke are a substantially different combination, you are not violating copyright. The joke is original.
Change the expression, lose the joke?
For most of us, the problem lies in that jokes are typically short. And so it is much more difficult to make changes to the expression of a joke so that it is not the same as the expression of another. And often when you change the expression for a joke, it ceases to be funny anymore- so you would not want to do that anyway. But that is exactly what a good comedian is able to do. Or should be able to do. The creativity and brilliance of a comedian is determined by how well he is able to change the expression for a joke while retaining its humour. As long as he provides different details and embellishment even while building on the same idea as another, he is making up new jokes, and not stealing jokes.
The myth of laughter in unexpectedness
We normally think that a joke is funny only as long as you don't know what comes next. This isn't a new thought. Immanuel Kant was also of the opinion that laughter is materialised "from the sudden transformation of a strained expectation into nothing". Though notably the serious Enlightenment philosopher can hardly be called a jester. And if we reflect upon this idea a bit more we will find that unexpectedness of a joke- commonly understood as the "punchline" sure makes us laugh, but that is not the only way a comedian gets his audience to laugh. Laughter often emerges from the discussion of social fringes and taboos. I've often noticed teens and pre-teens sniggering as they discover soft porn material. For the mainstream society, customs of the tribes are extremely funny. Toilet humour somehow never seems to lose its charm. All these examples go onto refute the idea that a joke can be funny only if it hasn't been heard before. Sample this modern joke oft-told:
Man: Doctor, doctor, I have a huge problem. Whenever I sleep, my eyes close!
Doc: Don't worry, take this medicine. Two pills after going to sleep, and two before waking up.
Now compare this against a joke from Philogelos, the collection of the oldest jokes in the world.
Dumb Student: Doctor, when I wake up, I'm all dizzy, then after half an hour I'm OK.
Doc: Well, wait a half hour before waking up.
Same idea, right? But different jokes, because of different expressions. Importantly, note that in spite of the same idea being repeated for over 1,600 years, it still has not lost its humour.
But they keep stealing my joke!
The irk over "stealing jokes" is largely an ostracisation over using the same ideas, and not expression. Our copyright law does not protect ideas and never has. The notion that stealing ideas is wrong, is a fairly recent development from the 1950's and 1960's, when the comedian's club decided that using the same ideas over and over was no longer cool, and started making some serious investment into writing "new" jokes- hiring a whole entourage for it. At the same time, one-liners began their decline as people started saying longer, observational jokes, because it was easier to detect similarity of expression in longer jokes, and persecute pilferers for infringement. One should refrain from seeing this development in black and white shades, because it merely promoted one form of joke over the other. What went wrong was that somewhere down the line with the rhetoric used against stealing ideas, people probably forgot that no idea in fact, can possibly be original. This amnesia has sadly stigmatised some kinds of gags. Mimes and vaudevilles which repeat the same ideas, while emphasising more on performance seem to have become lost art even as stand-up comedy with its emphasis on the idea over performance takes their place. I don't intend to criticise stand-up comedy per se: Straight-faced sarcasm works great for me! But this spirited outcry over "thieving ideas" has the dangerous ability to destroy certain forms of comedy altogether. And as lovers of laughter, we should be wary.
There is a reason law does not protect ideas. If it did, the world would be at a standstill. Newton once said, "If I have seen further it is only by standing on the shoulders of giants." All our present ideas are developed and furthered upon already existing ideas, ideas from the past, ideas which have already been thought of. Where would we be now if "stealing ideas" was prohibited? And imagine if we were prohibited from sharing ideas for inducing something as basic as human laughter. It's be a sad world, in deed. Creativity lies in expression, much more than in ideas. Stealing Borrowing ideas is not wrong- either legally, or ethically. And no good comedian is unaware of that.
