Get Out of My Garden - Intellectual Property in Stand-Up Comedy

Jonathan Kiernan
Intellectual Property in Stand-Up Comedy
Jonathan Kiernan Get Out of My Garden: Intellectual Property in Stand-Up Comedy Lancaster University Law School Final Year Dissertation
Jonathan Kiernan
A joke is a very serious thing --Winston Churchill
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Contents
1. Introduction - 3 2. English Copyright Law - 7 3. Social Norms - 30 4. Improving the Social Norms System - 53 5. Conclusions 64 6. Bibliography - 67
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Chapter 1 Introduction
The author E.B. White compared analysing humour to dissecting a frog; the problem, he observed, is that few people are interested and the frog dies. 1 It is hoped that the forthcoming consideration of intellectual property in stand-up comedy will be interesting and will not contribute to the death of any joke, or indeed amphibian. The study begins with one basic question: can a joke be owned? And it is from this root that the rest of the analysis will develop. In order to answer this initial question, it will be necessary to provide an in-depth account of English copyright law, before determining how the law applies to comedy. Having established whether or not it is possible to own a joke, it will be necessary to consider the legal and, if appropriate, non-legal methods of asserting and enforcing ownership of comedic material. This will include assessing whether legal or non-legal methods are prevalent amongst comedians and which would theoretically be the most effective. Before considering the legal issues raised in this research, it is first important to provide some definitions and to put those legal issues into context. This is because the question of whether a joke can be owned is a rather unexciting technical question and one which can be answered relatively easily, by simple recourse to an intellectual property textbook. However, when put into context, the question is far from being a matter of technical application of statutory rules and becomes a matter of artistic integrity, violent confrontations and multi-million pound disputes.
White, E.B. and White, K. A Subtreasury of American Humor. 1948 (New York: Modern Library) at xvii
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A joke is defined in the Oxford English Dictionary as something said or done to excite laughter or amusement.2 While a joke is simple to define, stand-up comedy is far more problematic. The Oxford English Dictionary states that a stand-up comic is a comedian whose act consists of standing before an audience telling a succession of jokes.3 Stand-up comedy academic Oliver Double feels that this definition vaguely describes stand-up, but does not go far enough in describing other features of the art form.4 Besides being funny, Double suggests three features which define stand-up comedy and these are display of the performers personality, direct communication between performer and audience and the performance taking place in the present tense.5 It is clear that an expansive discourse could be presented on what defines stand-up comedy, but in the interests of moving on to answer the main questions of this study the working definition which will be used is that a stand-up comedian is someone who tries to make an audience laugh by saying funny things and telling jokes. The protagonist in this investigation is the stand-up comedian, who according to the aforementioned definitions uses jokes to entertain an audience and make them laugh. Jokes are the essence of *a comedians+ creativity according to Oliar and Springman6 and Herman notes that jokes are essentially a comedians livelihood.7 Stand-up comedians, therefore, spend many hours writing and perfecting jokes, knowing that a good joke could be highly
2
Oxford English Dictionary. Accessed at <http://www.oed.com/search?searchType=dictionary&q=joke> (Last accessed 16/04/2012) 3 Oxford English Dictionary. Accessed at <http://www.oed.com/view/Entry/188998?redirectedFrom=standup%20comic#eid20837934> at Entry 1(d) (Last accessed 16/04/2012) 4 Double, O. Getting the Joke: The Inner Workings of Stand-Up Comedy (Methuen; 2005) at 19 5 n4 above at 19 6 Oliar, D. and Springman, C. Theres no free laugh anymore: The emergence of intellectual property norms and the transformation of stand-up comedy 94(8) Va. L. Rev. 1787 (2008) at 1790 7 Herman, G. The copyrightability of jokes: Take my registration deposit please 6 CommEnt. L.J. 391 (1983) at 391
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valuable
to
them,
both
financially
and
in
terms
of
career
progression.8
Unfortunately, some comics choose to bypass this creative stage and instead appropriate material from other performers and this, Herman insists, cheats the comedian who wrote the joke out of financial reward and public recognition.9 The practice of joke theft is widespread, with a study by Bruce Desseau finding that 55% of comics believe that they have had material stolen10 and there have been a number of well publicised disputes over stolen material. In 2004, Jimmy Carr demanded an apology from Jim Davidson, after he felt Davidson had stolen one of his jokes,11 in 1995 Stewart Lee wrote an article in the Sunday Times about a Michael Redmond joke, which Joe Pasquale had used12 and later performed a routine about the incident13 and in 2010 Keith Chegwin caused uproar when he tweeted other comedians jokes without attribution.14 These are just a few of the incidents of alleged joke theft and there have been many more, both in the UK and further afield. The question we must ask, then, is does the law protect creators against wrongful appropriation of their jokes and if so, does it work in practice? This will be answered by reference to English Copyright law, in an attempt to determine the formal legal position of
8 9
n6 above at 1789 n7 above at 391 10 Desseau, B. In-jokes: The UK comedy census results The Guardian, 14/04/2011. Accessed at: <http://www.guardian.co.uk/stage/theatreblog/2011/apr/14/uk-standup-comedy-census> (Last accessed 16/04/2012) 11 BBC News Stand-ups square up over fat joke (05/08/2005) Accessed at: <http://news.bbc.co.uk/1/hi/entertainment/3539246.stm> (Last accessed 16/04/2012) 12 Lee, S. Joe Pasquale Sunday Times, December 2005 (Accessed at <http://www.stewartlee.co.uk/press/writtenformoney/1995-dec-joe_pasquale-sundaytimes.htm> on 16/04/2012) 13 Stewart Lee Joe Pasquale Joke, 2006, online video. Accessed at <http://www.youtube.com/watch?v=0YE9Kthyaco> on 16/04/2012 14 Kettle, J. Has Keith Chegwin been stealing comedians jokes on twitter? The Guardian, 22/07/2010. Accessd at: <http://www.guardian.co.uk/stage/theatreblog/2010/jul/22/keith-chegwin-comedians-jokes-twitter> on 16/04/2012
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jokes as intellectual property. Having discovered the legal position of jokes, the extent to which the law actually protects comedians will be assessed with reference to the relevant case law and literature, particularly the work of Dotan Oliar and Chris Springman.15 There will be focus on Oliar and Springmans suggestion that a system of social norms is at work within comedy circles, which effectively acts as a form of self-regulation and examples of such a system will be discussed. Attention will also be given to the prospect of improving this social norms system, in order to make it more effective and give more protection to comedians. With an understanding of both the intellectual property laws governing comedy and the social norms system, a conclusion will be drawn as to which is more effective and also as to what each could learn from the other.
15
n6 above
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Chapter 2 English Copyright Law

Having considered how valuable a joke is to its creator, studying English copyright law will give an insight into the formal legal protections which are in place to prevent theft of jokes and this chapter will address the question: is it possible to own a joke in English law? This will require an examination of English copyright law. Bently and Sherman define copyright as the term used to describe the area of intellectual property law that regulates the creation and use that is made of a range of cultural goods.16 Justifications In order to understand the law fully, an understanding of the justifications for copyright law is required, as this provides an insight into the reasons for the existence and operation of the legal measures and what those measures are intended to achieve. As Bently and Sherman note, copyright has potentially damaging effects, including the restriction of the use of cultural objects and it is therefore important to constantly reassess its legitimacy. 17 There are several justificatory theories for copyright18 and it is important to consider both economic arguments, which seek to make creation financially viable and rewarding,19 and natural rights arguments,20 which often become evident as notions of artistic integrity. The central problem in copyright is balancing the need to reward the creator with the need to ensure that the work becomes available to society.21 When creators are given the
16 17
Bently, L. and Sherman, B. Intellectual Property Law 3rd ed. (Oxford; 2009) at 31 n16 above at 35 18 n16 above at 36; 19 Landes, W. and Posner, R. An Economic Analysis of Copyright Law (1989) 18 Journal of Legal Studies 325 at 326 20 Hughes, J. The philosophy of intellectual property 77 Geo. L.J. 287 (1988) at 297 21 n19 above
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protection of copyright it is possible for them to recover their investments and even profit from their creations and they are encouraged to publish their work, which benefits society. In due course, an attempt will be made to find evidence of these justifications in the social norms system suggested by Oliar and Springman. Types of Work The starting point for copyright is the Copyright, Designs and Patents Act 1988. 22 The act vests a number of rights in the owner of copyright, but it is first necessary to determine whether a joke or comedic routine is protected subject matter under the 1988 Act. This requires the work to fall into one of a number of defined categories and, in this instance, the categories of most interest are literary and dramatic works. s3(1) of the 1988 Act describes a literary work as any work, other than a dramatic or musical work, which is written, spoken or sung.23 s3(1) goes on to state that musical work includes only music and not any lyrics which are intended to accompany this music. 24 Standup comedy, being based on the use of language to make an audience laugh, does not fit into the definition of a musical work. The 1988 Act gives scant definition of a dramatic work, except to say that it includes a work of dance or mime.25 However, in Norowzian v Arks (No.2), Nourse LJ defined a dramatic work as a work of action, with or without words which is capable of being performed in front of an audience.26
22 23
Copyright, Designs and Patents Act (CDPA) 1988 s(3)1 CDPA 1988 24 S3(1) CDPA 1988 25 S3(1) CDPA 1988 26 [2000] E.M.L.R. 67 at 73
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Some comedians make extensive use of physical gestures and mimes in order to illustrate the point they are making and indeed, for performers such as Michael McIntyre 27 and Lee Evans,28 gestures and actions may form an integral part of the act. It is not inconceivable that such a comic would find replication of one of their actions equally as damaging as joke theft; therefore, for some performers it is likely that they would only consider their work properly protected if it were protected as a dramatic work. According to Nourse L.Js definition in Norowzian, the words used by the performer would also be protected as part of the dramatic work.29 However, most comedians movements on stage are nothing more than incidental and are not an integral part of their act, meaning that many acts will not be a work of action and would not, therefore, be protected as dramatic works. Consequently, being a spoken work but not musical or dramatic, as required by s3(1) Copyright, Designs and Patents Act 1988, the routines performed by these comedians would be literary work, provided the work satisfies the appropriate test. The test for whether something is a literary work was given in Hollinrake v Truswell,30 where Davey L.J. stated that a literary work must afford information, instruction or pleasure.31As illustrated by Express Newspapers v Liverpool Daily Post,32 as long as the work provides information, instruction or pleasure it will qualify as a literary work; 33 stand-up comedy is
27
Merritt, S. Michael McIntyre The Observer, 08/11/2009. Accessed at <http://www.guardian.co.uk/stage/2009/nov/08/michael-mcintyre-comedy-review> on 25/10/2011. 28 Logan, B. Lee Evans review The Guardian, 16/09/2011. Accessed at <http://www.guardian.co.uk/stage/2011/sep/15/lee-evans-review> on 25/10/2011. 29 n26 above at 209 30 [1894] 3 Ch. 420 31 n30 above at 428 32 [1985] 1 W.L.R. 1089 33 n32 above at 1094
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intended to provide pleasure, or more generally entertainment, so satisfies this requirement. Accordingly, stand-up comedy can be considered literary work. This could lead to arguments that there are two different types of work within stand-up comedy; literary work, performed by comedians whose acts more clearly fit the definitions of stand-up comedy which were discussed above and dramatic work, characterised by comedians relying more on actions, gestures and mimes. Yet there are still complications to be found; for example, a comedian may perform a routine with many actions and gestures, but deliver one joke with none. One copyright work, in this instance one comedy routine, can contain both literary and dramatic work.34A stand-up comedy performance may, therefore, have literary, dramatic, or both literary and dramatic works subsisting within it. This flexibility means that protection theoretically extends to all comedians; for example, the silent comedian The Boy with Tape on his Face,35 Lee Evans, who moves and speaks extensively36 and Dave Allen, who simply sat still and spoke,37 would all be protected by copyright. Additionally, copyright subsists in the music performed by musical comedians,38 such as Tim Minchin.39 Duration
34 35
Newspaper Licensing Agency v Marks & Spencer plc. [2003] 1 A.C. 551 at para 4 Logan, B. The boy with tape on his face: Actions speak louder than words The Guardian, 27/09/2011. Accessed at <http://www.guardian.co.uk/stage/2011/sep/26/sam-wills-boy-with-tape-comedy> on 16/04/2012. 36 n28 above 37 Dave Allen Giving up smoking, 2009, online video. Accessed at <http://www.youtube.com/watch?v=4cTBQLX6nU> on 16/04/2012. 38 n24 above 39 Logan, B. Tim Minchin review The Guardian, 16/12/2010. Accessed at <http://www.guardian.co.uk/stage/2010/dec/15/tim-minchin-orchestra-tour-review> on 16/04/2012.
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s12(2) of the Copyright Designs and Patents Act 1988,40 as revised to implement European Union Directive 93/98/EEC,41 sets the duration of copyright at 70 years from the end of the calendar year in which the author dies.42 Criteria for Protection Copyright arises automatically, with no need for registration.43 However, certain criteria for protection must be met in order for copyright to subsist in the work. Recorded in material form According to s3(2) of the Copyright, Designs and Patents Act 1988, copyright does not subsist in literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.44 This means that for copyright to protect stand-up comedy, the material must be recorded and this could either be in writing or as a video or audio recording. Double asserts that many stand-up comedians write their act down and then perform the script45 and in this instance copyright will subsist as soon as the material is written, as it is immediately recorded. A more complicated issue, though, is the work of comedians whose acts may change or develop over time, often because the comic changes parts as he goes along.46 Consequently, the routine may well undergo many changes in words or phrases aimed at improving the material. Bently and Sherman suggest that this will not be a problem as once work is protected, it will remain protected regardless of subsequent changes in
40 41
s12(2) CDPA 1988 Directive 93/98/EEC 42 s12(2) CDPA 1988 43 n16 above at 92 44 s3(2)CDPA 1988 45 n4 above at 237 46 n4 above at 239-240
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form.47 This is because copying with slight changes still amounts to copyright infringement according to Designers Guild v Russell Williams,48 which will be discussed at length below. Eddie Izzard does not write down any material at all, preferring to create on stage and change his act as ideas occur to him.49 He would, therefore, be wise to record every performance to ensure that copyright subsists in any new joke which he may create; changes to existing material, however, should be covered by the existing copyright. Original Literary and dramatic works must be original, as required by s1(1) of the CDPA 1988. 50 Mummery L.J., in Sawkins v Hyperion Records,51 clarifies that original, in the context of the law, does not mean that the work must be novel, inventive or even of good quality, rather it must have originated from the authors own efforts.52 According to Lord Reid in Ladbroke v William Hill, when deciding if a work is original, the courts assess whether the author has expended sufficient skill, judgment and labour.53 One of the most important points to note is that English law is, as eloquently stated by Peterson J. in University of London Press v University Tutorial Press Ltd., not concerned with the originality of ideas, but with the expression of thought.54 What this means is that an idea need not be original, as long as the way in which it is expressed is original; accordingly,
47 48
n16 above at 93 [2000] 1 W.L.R. 2416 49 Bedell, G. Mentally, Im all boy plus extra girl The Observer, 03/10/2003. Accessed at <http://www.guardian.co.uk/film/2004/oct/03/comedy> on 16/04/2012. 50 s1(1) CDPA 1988 51 [2005] 1 W.L.R. 3281 52 n51 above at 3288 53 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R. 273 at 278 54 [1916] 2 Ch. 601
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when determining the originality of a joke, it is the wording of the joke which is important, not the idea behind it. The case of Baigent and Leigh v Random House55 illustrates the effect of the so-called ideaexpression dichotomy. The authors of The Holy Blood and the Holy Grail claimed that Dan Brown had infringed their copyright by using several of their ideas in The Da Vinci Code, such as the existence of a secret society and a bloodline from Jesus Christ to the present day.56 The Court of Appeal held that whilst ideas from the copyright work had been used by Brown, the ideas used fell on the wrong side of the line between ideas and expression.57 Mummery L.J. stated that deliberate language copying58 or the same selection of incidents and quotations59 would have amounted to copying of expression. Although the words of The Holy Blood and the Holy Grail had not been used, Wyburn notes that the book was the result of much research and literary architecture on the part of the authors. 60 Herein lies the basis of the idea-expression dichotomy; as Pila argues, copyright works are evidenced by their material fixations, *but+ they are created and exist independent of those fixations. 61 For Sherman, the question is how far is it permissible to abstract away from the surface of the printed word to the intangible ideas that are presumed to lie behind the text?62 The idea-expression dichotomy will be considered in the context of infringement in due course. The following example will illustrate how two jokes can have the same idea, but a different expression.
55 56
[2007] EWCA Civ 247 n55 above at para 23 57 n55 above at para 83 58 n55 above at para 157 59 n55 above at para 158 60 Wyburn, M. The wrong side of the line between ideas and protected expression 18(6) Ent. L.R. 214 (2007) at 218 61 Pila, J. Copyright and its categories of original works 30(2) O.J.L.S. 229 at 237 62 Sherman, B. What is a copyright work? 12 Theoretical Enquiries in Law 99 at 104
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Russell Brand, on the subject of the 2008 US Presidential Election and the possibility that George Bush could be replaced by Barack Obama, at the September 2008 MTV Video Music Awards said: Some people, I think theyre called racists, think America is not ready for a black President. But I know America to be a forward-thinking country, because otherwise, would you have let that retarded cowboy fella be President for 8 years? We thought it was nice of you to let him have a go, because in England he wouldnt be trusted with a pair of scissors.63 The idea behind the joke is that if the people of the USA could vote for what Brand considers to be a completely unsuitable President who is white, they could surely have no problem voting for an African-American President. The following joke was made by Chris Rock on Friday Night with Jonathan Ross in January 2008: George Bush messed up so bad that he made it hard for a white guy to even run for President. People are like give me a woman, a black guy, a giraffe64 Like Brand, Rock is suggesting that having had an unsuitable white President, American citizens should have no problem voting for an African-American President. However, as can be seen, the wording of the two jokes is completely different, so neither comic could be said to have stolen the joke from the other, yet both jokes are based on the same idea. The law would protect each comedians expression, so that neither wording could be appropriated, but the idea would remain unprotected and, therefore, free for any other comic to use.
63
BBC News Spears dominates MTV awards show 08/09/2008. Accessed at <http://news.bbc.co.uk/1/hi/entertainment/7602885.stm> on 27/10/2011. 64 Chris Rock on Jonathan Ross, 2010, online video. Accessed at <http://www.youtube.com/watch?v=VdHAzC9Ra2M> on 27/10/2011.
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Brands joke, which was performed several months after Rocks, is original for the purposes of copyright law because the expression of the idea is different; this illustrates the approach which must be taken when considering when determining originality. Qualified Chapter IX of the Copyright, Designs and Patents Act 1988 states that in order to benefit from protection under UK law, a work must be meet the qualification requirements of the chapter.65 Essentially, the work must have sufficient connection to the UK in order to be protected by UK law and this can either be through the author, under s154, 66 or by the country of first publication, under s155.67 s154(1) states that if the author was a qualifying person at the material time the work will be qualified.68 That subsection goes on to define a qualifying person as someone connected to Britain by way of citizenship or nationality, an individual resident or domiciled in the UK or a country to which the Act extends or applies, or a body incorporated under the law of the UK or a country to which the Act extends or applies.69 The material time for literary works, according to s154(4), is when an unpublished work was made, or when a published work was first published.70 For the purposes of s155, a work is qualified by reference to country of first publication if it is first published, or published within 30 days of first publication, in either the UK or a country to which the Act extends or applies. 71 The countries to which the Act extends are found in s157(2) and are the Channel Islands, the
65 66
Chapter IX CDPA 1988 s154 CDPA 1988 67 s155 CDPA 1988 68 s154(1) CDPA 1988 69 s154(1) CDPA 1988 70 s154(4) CDPA 1988 71 s155 CDPA 1988
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Isle of Man and any colony.72 s159(1) gives the power to apply, by way of an order in council, the Act to countries to which it does not extend73 and by the Copyright and Performances (Application to Other Countries) Order 2008,74 the Act is applied to 182 countries. In short, a qualified work is one which is created by a British author or an author resident or domiciled in a country listed in the Schedule to SI 2008/677, or one which is first published in Britain or one of the aforementioned countries. Any work meeting these requirements will be qualified for protection under UK law, which makes the protections wide ranging in their application. Excluded Subject Matter The final requirement which must be satisfied in order for a work to be protected by copyright is that the work is not excluded on the grounds of public policy. According to Lightman J in ZYX Music v King,75 it is well established that the court may refuse to enforce copyright on public policy grounds.76 Sims states that copyright protection has been denied on the grounds of the work being fraudulent or deceptive, obscene, indecent, immoral, blasphemous and irreligious, amongst other reasons.77However, an examination of the cases which are cited for those propositions shows that the latest of them, Glyn v Weston Feature Film Co.,78 was decided in 1916, creating doubts as to the modern application of the
72 73
s157(2) CDPA 1988 s159(1) CDPA 1988 74 Copyright and Performances (Application to Other Countries Order) 2008 SI 2008/677. List of Countries contained in Schedule to the SI. 75 [1995] F.S.R. 566 76 n75 above at 577 77 Sims, A. The Denial of Copyright on Public Policy Grounds *2008+ E.I.P.R. 189 at 189 78 [1916] 1 Ch. 261
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public policy exception.79 These doubts are perhaps a product of the feeling that, as suggested by Sims, perceptions of immorality have changed.80 This is not to say that public policy has ceased to be used by the courts as a reason for refusing to enforce copyright; in Attorney-General v Guardian Newspapers,81 the House of Lords, in 1988, refused to enforce copyright in a book because of the disgraceful circumstances82 in which the book had been written. As previously mentioned, many of the cases which provide authority in this area are very old and may no longer be relevant in establishing when copyright should be refused. For example, in Glyn v Weston Film Feature,83 Younger J refused the protection of the court to the author of a book which he felt was grossly immoral and serving only to glorify adultery.84 Compared with the modern day, when books such as The Intimate Diary of a London Call Girl,85 the memoirs of a prostitute, are freely available and well publicised it is easy to see how moral standards, and with them the public policy exception, have changed. As in publishing, moral standards regarding comedy change and Sims asserts that copyright changes with those standards,86 making this an area of great interest for a study of intellectual property in comedy. In 1964, the American comic Lenny Bruce was convicted of obscenity due to the swearing and discussion of taboo subjects in his act.87 In contrast,
79 80
Hyde Park Residence v Yelland [1999] R.P.C. 655 at 664 n77 above at 190 81 [1990] 1 A.C. 109 82 n81 above at 275 83 n78 above 84 n78 above at 269 85 Merritt, S. Erotic? Youre having a laugh The Observer, 16/01/2010. Accessed at <http://www.guardian.co.uk/books/2005/jan/16/fiction.features> on 16/04/2012. 86 n77 above at 197 87 People v Solomon 26 N.Y. 2d 621
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swearing is now commonplace and even considered as having some form of artistic merit;88 likewise, the subjects discussed by Bruce which caused controversy, such as politics and religion are now regularly included in comedy routines. The issue which best highlights what the comedian Richard Herring calls the ebbing and flowing89 of moral boundaries in comedy is racism. The comedian Bernard Manning was notorious for his racist material, 90 which on one occasion led the Employment Appeals Tribunal to find a hotel which employed him vicariously liable for racial harassment.91 Despite this, Manning featured extensively on television in the 1970s and made millions of pounds by performing his material, 92 suggesting that racist comedy was not only acceptable, but popular. In contrast, racism in modern comedy is condemned93 and some comics, such as Herring, use their act to challenge intolerance.94 As can be seen, attitudes regarding morality and offence can change completely, making it difficult for the courts to decide what constitutes public policy when refusing to enforce copyright. The list of reasons given by Sims, above, for the refusal to enforce copyright could easily be confused with a list of accusations levelled at a modern comedian by a morally outraged tabloid newspaper,95 yet members of the public may find
88
Burrell, I. Frank Skinner: Swearing can still be beautiful The Independent, 05/12/2008. Accessed at <http://www.independent.co.uk/arts-entertainment/comedy/features/frank-skinner-swearing-can-still-bebeautiful-1051785.html> on 16/04/2012. 89 Logan, B. There isnt a new offensiveness The Guardian, 31/07/2009. Accessed at <http://www.guardian.co.uk/stage/2009/jul/31/richard-herring-standup-comedian-brian-logan> on 16/04/2012. 90 n4 above at 280 91 Burton v De Vere [1997] I.C.R. 1 92 Dixon, S. Obituary: Bernard Manning The Guardian, 19/06/2007. Accessed at <http://www.guardian.co.uk/news/2007/jun/19/guardianobituaries.obituaries1> on 16/04/2012. 93 Logan, B. The new offenders of stand-up comedy The Guardian, 27/07/2009. Accessed at <http://www.guardian.co.uk/stage/2009/jul/27/comedy-standup-new-offenders> on 16/04/2012. 94 n89 above 95 Goslett, M. Russell Brand and Jonathan Ross could face prosecution Daily Mail, 26/10/2008. Accessed at <http://www.dailymail.co.uk/news/article-1080621/Russell-Brand-Jonathan-Ross-face-prosecution-obsceneair-phone-calls-Fawlty-Towers-actor-78.html> on 28/10/2011.
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the work entertaining and stimulating. Ultimately, this is a highly subjective area and the courts, if presented with a relevant issue, may wish to refer to the Equality Act 2010 for advice on what should be excluded on the grounds of public policy.96 Authorship and Ownership Identifying the owner of copyright is important as it indicates who has the rights which are afforded to the copyright owner. The rule in s11(1) Copyright, Designs and Patents Act 1988 is that, generally, the first owner of copyright is the author of the work. 97 The author, according to s9(1) of the 1988 Act is the person who creates the work,98 meaning that in ordinary circumstances, the creator is the first owner of copyright. This can be complicated by joint creation, whereby more than one person is involved in creating the work, but if any individual has expended sufficient skill, labour and judgment they will be considered an author.99 Accordingly, where a comedian writes his own jokes, he will be the author and first owner of copyright in them. As noted by Oliar and Springman, comedians can simplify the situation of joint ownership by purchasing the copyright from their joke writers under a contract which states that the copyright is owned solely by the comic.100 There is a presumption that where work is created in the course of employment, the employer will be the first owner of copyright.101 It would be possible to argue that this could be detrimental to comedians who spontaneously create material during the recording of a television programme, as a joke created by a comedian whilst on a television programme would become the intellectual property of the employer. However, it is possible to exclude
96 97
Equality Act 2010 s11(1) Copyright, Designs and Patents Act 1988 98 s9(1) CDPA 1988 99 Donoghue v Allied Newspapers [1938] 1 Ch. 106 100 n6 above at 1828 101 s11(2) CDPA 1988
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the effect of the section through contract, although the inequality of bargaining power between comics and television production companies may make this impossible. Despite possible evidential difficulties, a comedian who writes his own material will be the owner of copyright in his work. Rights of the Copyright Owner The owner of copyright has a number of rights over the relevant work, under the Copyright, Designs and Patents Act 1988. The right of most interest for this study is the s19(1) restriction of public performance.102 It is, therefore, an infringement of copyright for someone who is not the owner of the copyright to perform the copyrighted work to the public. In practical terms, this provision gives a comedian the exclusive right to perform their material in public. According to s19(2)(a), performance includes lectures, addresses and speeches103 and, being a verbal presentation to an audience, stand-up comedy can easily be seen to fit within this definition. The other factor which must be considered is that the performance must be public. Many stand-up comedy performances will clearly be in public, for example, those which take place in a theatre or an arena, but the situation is not always so clear. Bently and Sherman suggest that the courts have created three different tests to determine whether a performance takes place in public104 and each will briefly be summarised.
102 103
s19(1) CDPA 1988 s19(2)(a) CDPA 1988 104 n16 above at 147
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Firstly, a test based on links between the audience, as applied in Jennings v Stephens,105 aimed at determining whether the audience were present together through a desire to see the performance, or through a private link.106 Secondly, a financial motive test, which considers whether the performance was run for profit. It was held in Harms v Martans107 that this is a proprietary club leading to the conclusion that *the performance] was in public.108 The nature of the test is that where a performance is intended to generate profit, it will be in public. The final test considers the concept of in public relative to the audience of the copyright owner and was introduced by Lord Greene M.R. The nature of the test is to consider whether the public to which the work was performed represented the copyright owners public.109 This test essentially considers whether the copyright owner has suffered damage through the infringement. Bently and Sherman argue that the nature of the relationship between the tests is unclear, but that the courts usually favour the copyright owner by deciding that the performance did take place in public.110 Moral Rights According to Holyoak and Torremans, moral rights represent the strong nexus between work and creator.111 Having originated in continental Europe,112 moral rights were introduced to UK copyright law by CDPA 1988113 and acknowledge the continental idea of
105 106
[1936] 1 Ch. 469 n105 above at 484 107 [1927] 1 Ch. 526 108 n107 above at 534 109 n105 above at 485 110 n16 above at 148 111 Holyoak, J. and Torremans, P. Intellectual Property Law (Oxford; 2011) at 231 112 n111 above at 231 113 Chapter IV CDPA 1988
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the rights of the author, which stands in contrast to the more economic perception of copyright held in the UK.114 The four rights in the 1988 Act are the paternity right, the integrity right, the right against false attribution and the right to privacy regarding private photographs; only the first two rights will be considered in detail. The so-called paternity right, contained in ss77-79 CDPA 1988,115 gives the author of a copyright literary work the right to be identified as the author of the work. 116 s77(2) states that this applies where the work is published commercially or performed in public.117 Under s78(1) the right to be identified as the author must be asserted.118 The integrity right, found in s80 CDPA 1988, gives the author of copyright literary work the right to object to derogatory treatment of his work.119 s80(2) of the Act defines derogatory treatment as addition, deletion, alteration or adaptation,120 which amounts to distortion or mutilation of the work, or which is otherwise prejudicial to the honour or reputation of the author.121 Moral rights aim to create a balance between the rights of the author and the flexibility required by entrepreneurs 122 and this may render moral rights irrelevant for many stand-up comedians, as there is often no business partner who is responsible for the commercial exploitation of the work. The fact that the creator is also the performer and the benefactor
114 115
n111 at 231 s77-79 CDPA 1988 116 s77(1) CDPA 1988 117 s77(2) CDPA 1988 118 s78(1) CDPA 1988 119 s80(1) CDPA 1988 120 s80(2)(a) CDPA 1988 121 s80(2)(b) CDPA 1988 122 n111 at 232
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means that identification as the author is unnecessary. Similarly, it is likely that most comedians would not allow their work to be performed by anyone else, meaning jokes would usually not be in a position to be treated in a derogatory way. 123 However, the fact that performers in broadcasts must be identified under s205C CDPA 1988 may be useful for comics who appear on television.124 An exception to the paternity right exists in employeeemployer relationships.125 This means comedians who write jokes for television programmes, but do not perform, will not be entitled to identification. The paternity right could be seen to conflict with the practice of comedians, as Oliar and Springman state that normally, when a joke is sold, the author gives up all rights to it. 126 However, the requirement that moral rights be asserted by the holder 127 means as a condition of the sale, the enforcement of moral rights can be excluded, giving effect to the normal practice of the system. Whilst it has been shown that moral rights may act to protect comedians, it is also plausible that they could prevent certain comedic works, due to the potential for the inhibition of parodies.128 The integrity right means that it may be possible for a creator to enforce their moral rights and thereby prevent a comedian from performing a comedic version of the work. Infringement
123 124
n6 above at 1798 s205C CDPA 1988 125 s79(3) CDPA 1988 126 n6 above at 1828 127 s78 CDPA 1988 128 n16 above at 243
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As explained above, a comedian, as copyright owner, has various rights over his work and may allege that one of those rights has been infringed; for example, a comedian may suggest that another act has performed his material. In such an instance it is necessary to establish whether, in the eyes of the law, an infringement has occurred. If an action for infringement is to be successful the claimant must show that the defendant carried out one of the activities which falls within the copyright owners control; the defendants work was derived from the copyright work and the restricted act was carried out in relation to the work or a substantial part thereof.129 The activities in which the defendant must partake correspond with the rights held by the copyright owner, which were discussed above. In the context of this research into stand-up comedy, most instances would involve one comedian performing another comedians material and thereby infringing the others exclusive right to perform the work. The case of Autospin (Oil Seals) v Beehive Spinning130 illustrates the point that it is necessary for the defendants work to have derived from that of the claimant.131 This is a factual matter for the courts to decide, either through evidence or inference. Unless, for example, a witness saw a comedian taking notes at another comedians performance it is difficult to foresee many situations where an infringement of this type would produce direct evidence and it is therefore more likely that a court would have to infer derivation. As stated by Laddie J. in IPC Media v Highbury Leisure Ltd.132 the greater the similarities between the alleged infringement and the copyright work, the greater the prospect of
129 130
n16 above at 171 [1995] R.P.C. 683 131 n130 at 694 132 [2005] F.S.R. 20
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copyright being inferred.133 This is not to say that differences between the works should be ignored, because this can lead to what Laddie J. calls similarity by excision.134 The copying does not need to be exact according to Lord Scott of Foscote in Designers Guild v Russell Williams (Textiles) Ltd.135 where he held that altered copying was sufficient to amount to an infringement.136 Lord Hoffman spoke in similar terms in Newspaper Licensing Agency v Marks & Spencer plc,137 when he stated that infringement is sufficiently flexible to include the copying of ideas abstracted from works.138 Masiyakurima accuses Lord Hoffman of combining the test for substantiality with the idea-expression dichotomy and argues that this approach harbours serious drawbacks.139 The problem, according to Masiyakurima, is the potential for over-protection arising from a weakening of the requirement of substantial infringement.140 The altered copying approach adopted by Lord Scott and Lord Hoffman carries the danger of removing the idea-expression dichotomy from English law, thereby leading to a finding of copying in cases where such a result would be inappropriate. For example, in the Baigent case, the court would have been obliged to find that Dan Brown had infringed the copyright of Baigent and Leigh. The effect of this judgment would have been to allow Baigent and Leigh to monopolise historical knowledge.141 If this approach were to be taken, it is possible that the first comedian to express a particular viewpoint in a joke about a specific subject would have a monopoly over that idea; this is clearly a highly undesirable situation.
133 134
n132 above at 443 n132 above at 443 135 [2000] 1 W.L.R. 2416 136 n135 above at 2431 137 n34 above 138 n34 above at 560 139 Masiyakurima, P. The futility of the idea/ expression dichotomy in UK copyright law 38(5) I.I.C. 548 (2007) at 555 140 n139 above at 555 141 n55 above at 156
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It is important to bear in mind that copying which is altered to such an extent as to become a totally different expression of the work should be found to be original, given that the law protects the expression of an idea, but not the idea itself. Despite the slightly confused judgments referred to above, it is this interpretation which will be taken as representing the current state of the law. From the decided cases mentioned it appears that the courts are willing to infer derivation where, upon weighing up all of the similarities and differences, it appears that a defendant with both opportunity to copy and motive142 has copied the work of the defendant. Comedians regularly perform their work in public and some may even perform on television or DVD, making it highly likely that a comedian alleging infringement would be able to prove opportunity to copy. Lord Millet in Designers Guild v Russell Williams states that once it has been established that the defendants work incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. 143 Whilst realistically far more complicated and unclear, the basic question is whether the work copied by the defendant amounts, in terms of quality,144 to a substantial part of the copyright work. In Newspaper Licensing Agency Ltd v Marks & Spencer Plc,145 Lord Hoffman stated that the quality relevant for the purposes of substantiality is the literary originality of that which has been copied.146
142 143
n132 above at 443 n135 above at 2426 144 n53 above at 276 145 n34 above 146 n34 above at 559
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In the Designers Guild case the House of Lords gave detailed consideration to the issue of substantiality. Lord Hoffman stated that the proper question when considering substantiality is whether the elements copied form a substantial part of the copyright work and this should be decided in light of the cumulative effect of the features.147 Lord Scott proposes the use of the test suggested by Laddie, which asks has the infringer incorporated a substantial part of the independent skill, labour etc. contributed by the original author?148 Lord Scott therefore argues that to determine whether a substantial part of the copyright work has been copied, the court should compare the whole and ask whether a substantial part of the labour and skill has been incorporated.149 It is necessary to take issue with these judgments, particularly that of Lord Scott. To determine whether a substantial part of a copyright work has been copied, his Lordship suggests assessing whether a substantial part of the labour and skill of the original author has been incorporated in the subsequent work. However, for copyright to subsist in the work, it is necessary for the author to have exhibited originality, by way of labour and skill.150 So essentially, Lord Scotts test attempts to determine whether a substantial part of a work has been copied by asking whether a substantial part of a work has been copied and is, therefore, completely circular. Lord Millet gives a more coherent judgment and argues that where features of a work are sufficiently numerous or extensive to infer copying, they are likely to amount to a
147 148
n135 above at 2421 n135 above at 2431 149 n135 above at 2431 150 n53 above
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substantial part of the copyright work.151 He goes on to state that substantiality is a matter of impression, based on quality, but does not attempt to outline a test.152 It follows that it is very difficult to define what will amount to a substantial part of a copyright work and it is, therefore, difficult to know whether anything beyond wholesale appropriation of a full joke will amount to infringement. Remedies Civil remedies are usually awarded in the form of injunctions, damages and accounting for profits.153 Under s107(3) of the Copyright, Designs and Patents Act 1988, it is a criminal offence to infringe copyright in a literary work by way of public performance. 154 This means that a comedian who performed the copyrighted work of another would be committing a criminal offence and would be liable to three months imprisonment or a fine under s107(5).155 Conclusion This chapter started with the question, is it possible to own a joke in English law? After a thorough consideration of the relevant statutes and case law, the answer, it appears, is yes. Jokes are literary works for the purposes of copyright law and provided they meet the criteria of being recorded, original, qualified and not excluded on public policy grounds, the creating comedian, who will be the first owner of copyright, gains extensive rights over the work. Importantly, the comedian has the exclusive right to perform his jokes and subject to any copying being recognised as such by the courts, the comic can theoretically enforce his
151 152
n135 above at 2426 n135 above at 2426 153 s96 CDPA 1988 154 s107(3) CDPA 1988 155 s107(5) CDPA 1988
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ownership in order to prevent infringement. The word theoretically, in the previous sentence, is perhaps an indication of the fact that the process is not quite as simple as it has been made to sound by this conclusion. The next chapter will consider the actualities and practicalities of the enforcement of copyright over jokes.
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Chapter 3 Social Norms

In the preceding chapter it was proposed that jokes and stand-up comedy routines are protected by copyright, subject to the appropriate criteria being met. Consequently, given that in chapter one it was suggested that the practice of joke theft is widespread, it would be legitimate to expect that many comedians would have used the law of copyright to protect their jokes, by litigating when they felt that material had been appropriated. In fact, considering the potential lucrative rewards of success, it would be realistic to anticipate that every instance of joke theft would lead to litigation; however, in reality, this is not the case. An extensive search of both legal and non-legal sources appears to reveal no evidence of any such litigation under English Law. There are two possible reasons for this, which must both be investigated fully; firstly, barriers exist which prevent the effective use of copyright law by comedians and secondly, there is a more effective system at work, which makes the use of copyright law redundant. Barriers to Legal Enforcement A number of factors combine to make litigation unattractive to comedians who have had their work appropriated. Primary amongst these, according to Oliar and Springman, is cost.156 All but the richest of comedians are likely to be deterred by expensive court and legal advice fees157 and this may prevent the bringing of a claim. Cost must also be weighed up against the resources of the defendant. Whilst suing a successful comic, who has accumulated wealth through tours and lucrative television work, may be highly profitable, most comics will not have such money, meaning the potential rewards of a successful claim
156 157
n6 above at 1799 HM Courts and Tribunals Service, Civil and Family Court Fees. Accessed at <http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/ex50_e.pdf> on 16/04/2012.
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may not even cover the costs incurred.158 Even when a comedian can afford to bring a claim, the limited resources of the defendant may make it pointless in financial terms. Furthermore, it is foreseeable that the chances of succeeding in a claim for copyright infringement in a joke would be relatively slim, due to the combination of the criteria which must be satisfied and the evidential problems which may be encountered. As was seen in the previous chapter, in order to be protected by copyright law a joke must be recorded, original, qualified and not excluded on public policy grounds. It must then be shown that there was an infringement, requiring a breach of one of the owners rights; a lack of independent creation; derivation from the claimants work and proof that a substantial part of the work had been copied. By reference to an alleged instance of joke theft, it will now be demonstrated how the above factors could be difficult to satisfy. In 1995, at the Royal Variety Performance, the comedian Joe Pasquale told the following joke: People quite often say to me oi, what are you doing in my garden?159 However, the comedian Michael Redmond had been using this joke as early as 1988: A lot of people say to me, hey you what are you doing in my garden?160 It is clear that these jokes are very similar; the punchline, what are you doing in my garden, is exactly the same and the feedline of each joke is the same, except for minor changes to wording. Given that Pasquale performed the joke after Redmond, it is alleged by Stewart
158 159
n6 above at 1810 Joe Pasquale at the Royal Variety Performance, 2008, online video. Accessed at <http://www.youtube.com/watch?v=XL2wAAG1TcY> on 16/04/2012. 160 n12 above
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Lee that Pasquale stole the joke from Redmond.161 For the purposes of accurately describing the way in which the law may work the position adopted will be that Lees version of events in correct. As such, it will be assumed that Redmond created the joke and Pasquale heard Redmond perform it and subsequently incorporated it into his own act; of course, it is possible that this is not the case. For an infringement to have occurred, it would have to be demonstrated that one of Redmonds rights had been infringed. Pasquale, by performing the work would have infringed the performance right, under s19(1) of the Copyright, Designs and Patents Act 1988.162 Furthermore, a substantial part of the claimants work must have been used, in terms of quality, meaning if the work appropriated had literary originality, this criterion is met.163 These two factors are not particularly problematic, but the final factor is far more difficult. It must be shown that the defendants work is derived from that of the claimant, which can be done either by evidence or inference. Given that Redmond performed on television and had a relatively high profile in comedy,164 it is likely that Pasquale could have seen or heard Redmonds joke without going to see Redmond perform. It would, therefore, be for the court to decide whether derivation could be inferred. This is a difficult issue, as whilst Pasquale could be seen to have the requisite opportunity and motive to copy165 and the works are inherently similar, the prospect of independent creation must always be considered. Pasquale would argue that he had written the joke himself, having never heard Redmond perform it. In the case of such a short joke, with a lack of narrative and little to
161 162
n12 above s19(1) CDPA 1988 163 n34 above 164 Chortle, Profile: Michael Redmond, Biography. Accessed at <http://www.chortle.co.uk/comics/m/33177/michael_redmond> on 16/04/2012. 165 n132 above at 443
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make the joke personal to the performer, it would be impossible to completely exclude this possibility. Accordingly, it is likely that a court would refuse to infer derivation, on the grounds that Pasquale could have written the joke himself. According to Oliar and Springman, independent creation is difficult to disprove,166 particularly when the joke in question relates to current affairs, as it is likely that a large number of comedians will be working to create jokes based on the same event. Comedians who have suffered copyright infringement must, therefore, face the fact that without evidence of derivation, they are highly unlikely to succeed in litigation.167 If the case of Kenrick v Lawrence168 is considered, the shorter and less complicated a joke is, the more difficult it will be to prove independent creation. It follows that a longer and more narrative joke is more likely to receive better copyright protection. Social Norms One of the primary arguments in favour of copyright law is that without copyright, creators would not be rewarded and would therefore have to stop creating, leading to a market failure.169 However, despite no use of formal protections and no litigation, this is not the case. On the contrary, the UK comedy website Chortle lists over 1000 working comedians170 and the comedy industry is thought to be performing well financially.171 Additionally, whilst a number of accusations of joke theft have been identified, most comedians report only having experienced one or two incidents of joke theft during their
166 167
n6 above at 1805 and 1811 Furthermore, it is possible that a defence of fair dealing for the purpose of reporting current events may arise in relation to the use of a joke about current events, although this is debatable s29 Copyright, Designs and Patents Act 1988 168 (1890) L.R. 25 Q.B.D. 99 169 n19 above 170 www.chortle.co.uk 171 Bennett, S. The state of the industry Chortle, 13/09/2010. Accessed at <http://www.chortle.co.uk/news/2010/09/13/11707/the_state_of_the_industry...> on 16/04/2012.
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career.172 The continued success of the comedy industry and the relatively few instances of joke theft suggest that whilst copyright law is not being used, something else is regulating intellectual property in stand-up comedy. That something else, according to Oliar and Springman, is a system of social norms by which comedians regulate themselves.173 An extensive description and examination of this system will now be undertaken and there will also be comment on the reliability of the study. The reason for the focus on this single piece of work is that no other academic work has as yet been produced in this area; other writers have discussed the possibility of formal protection of jokes, but none have considered informal self-regulation. Before beginning the consideration of Oliar and Springmans work it is important to express some reservations about the study. The basis of the article is the series of interviews with comedians which the authors conducted, however, from thousands174 of comedians, only 19 interviews were undertaken.175 The unreliability of the small sample size is compounded by the anonymity afforded to participants; whilst this may have made securing participation easier, it does cause a degree of scepticism as to the dependability of the apparently diverse group of comedians.176 The Norms System From the interviews conducted by Oliar and Springman, evidence emerged of a system of what they describe as social norms and this useful terminology will be adopted here. The
172 173
n6 above at 1812 n6 above at Chapter II 174 n6 above at 1790 175 n6 above at 1810 176 n6 above at 1810
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system is informal177 and self-policed,178 with direct enforcement179 and sanctions imposed by the community.180 Interestingly, it is stated that the protection of work in the social norms system never expires, unlike in copyright law, where duration restrictions are imposed.181 The major norm in the system is the norm against appropriation.182 As already discussed, joke stealing is seen as a major taboo183 amongst comics and it is therefore unsurprising that this should be reflected in the norms system. Interestingly, the norm appears to encompass all appropriation, including the appropriation of ideas184 and there does not seem to be any exceptions or derivations from the basic principle that material should not be appropriated. Oliar and Springman suggest that once the theft of material has been detected, the first thing to happen will be for the comedian whose material was used to negotiate with the appropriator.185 This process is thought to generally be brief, civil and effective in putting an end to the dispute.186 The description given of this negotiation is, however, conceptually flawed. The authors are explaining what happens in the event that two comics are performing similar material that has been independently created or subconsciously appropriated, rather than purposely stolen from another comic. In the latter circumstance, the comic has made a conscious choice to use another performers material to further his career and such an amicable resolution seems less likely than denial of the theft.187
177 178
n6 above at 1812 n6 above at 1813 179 n6 above at 1815 180 n6 above at 1816 181 n6 above at FIND 182 n6 above at 1812 183 n6 above at 1812 184 n6 above at 1823 185 n6 above at 1814 186 n6 above at 1812 187 n14 above; n12 above
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However, it remains possible that a joke thief may accept that he has been caught, apologise and stop performing the material in question; this represents the norms system at its most effective. Another social norm which was identified by Oliar and Springman is the norm regarding transfers, whereby when a joke is sold, all rights pass to the buyer. 188 The author retains no right to perform the joke and also loses the moral right of paternity;189 essentially, complete ownership passes to the buyer, such that it seems to anyone not involved in the transaction that the buyer wrote the joke. Whilst a system where joke stealing is seen as wrong and those accused of stealing are asked to stop is not particularly different from the legal system, the sanctions which may be imposed on joke thieves are what makes the norms system special. The range of sanctions for joke theft is wide and they focus on professional rather than financial punishments. Broadly speaking, there are two main categories of sanction, those intended to damage the career progression of the thief and those intended to damage the comedian in other non-fiscal, ways. The aim of the career-damaging sanctions is to prevent the comedian from getting work, by spreading his bad reputation to club owners, promoters and other comics.190 Those parties will then further disseminate the information, with the ultimate intention being that nobody in the comedy business will wish to hire the thief. Similarly, comedians themselves may refuse to perform in the same show as the individual in question,191 both as a measure to protect their own material and as a contribution to the
188 189
n6 above at 1828 n6 above at 1828 190 n6 above at 1815 191 Boyd, B. Whos laugh is it anyway? Irish Times, 24/06/2011. Accessed at <http://www.irishtimes.com/newspaper/theticket/2011/0624/1224299495798.html> on 16/04/2012.
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punishment of the offender.192 Cleary these sanctions, if applied aggressively and geographically widely could effectively end a comedians career. The other type of sanctions are perhaps more inventive. Reference has already been made to Stewart Lees routine about Joe Pasquale,193 where Lee explains the accusation of joke theft and subsequently makes Pasquale the subject of ridicule. This is a good illustration of how a creative sanction may be applied. Lees criticism spreads Pasquales reputation as a thief to a wide audience194 and is likely to cause embarrassment to Pasquale. Such public humiliation will surely have a deterrent effect on other comedians who may be contemplating appropriation. Other comedians have adopted a less inventive strategy of publicising allegations. Throughout this work, reference has been made to newspaper articles and other sources of information, all of which discuss the allegations against comedians. An aggrieved comedian who makes allegations public can expect that the media will pick up on and disseminate the allegations; however, this appears to usually be subject to the accused being sufficiently famous. Depending on the approach adopted by the media, the reporting of allegations may damage the reputation of a comedian. A similar, yet more confrontational, instance of a public sanction is Joe Rogans aggressive altercation with Carlos Mencia, where Rogan interrupted Mencias performance and demanded an explanation for a string of alleged material thefts perpetrated by Mencia. 195 Mencia was later mocked in the television programme South Park, where he was depicted
192 193
n6 above at 1818 n13 above 194 It has, at the time of writing, been seen half a million times on YouTube. 195 Joe Rogan Fronts out Carlos Mencia, 2007, online video. Accessed at <http://www.youtube.com/watch?v=bx9E4nPUhaA> on 16/04/2012.
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as a joke thief who is killed by the rapper Kanye West for telling a joke about West which Mencia had stolen from another comic.196 The most extreme of the sanctions in the norms system is physical violence. Oliar and Springman assert that, whilst rare, incidents of violence do occur and are seen as legitimate by the comedy community.197 Milton Jones states that a punch in the face backstage is a lot quicker than going to court.198 It can be seen that sanctions are flexible and largely depend on how the offence and the offender is perceived by the community. Justifications in the Social Norms System As noted in Chapter 2, Copyright law is said to be based on a number of justifications and assessing whether those, or indeed any other justifications, underlie the comedians social norms system will be useful for comparing the systems. Additionally, this will allow conclusions to be drawn as to the legitimacy of the social norms system. As a preliminary point, it should be understood that appraising the justifications in the social norms system is conceptually different to appraising the underlying justifications of formal copyright law. This is because, despite both being systems which aim to protect intellectual property, the copyright protections in the Copyright, Designs and Patents Act 1988, like any statute, were the result of years of consultation. The result is a carefully composed set of legislative provisions, which is designed to reflect the justifications on which it is based. The social norms system, however, was not designed at all; certainly there was no process of decision making, whereby the principles of the system were designed, rather the system emerged over a period of time. Potentially, this means that the social norms system more
196 197
Stone, M. and Parker, T. South Park, Season 13, Episode 5: Fishsticks (Comedy Central; 2009) n6 above at 1820 198 n191 above
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closely reflects its underlying justifications, but may also make the justifications more difficult to identify when considering the system. Conclusions on both of these points will be drawn in due course. Natural Rights Natural rights arguments are highly evident in the social norms system proposed by Oliar and Springman and can also been seen in articles written by comedians and interviews given by them. The comic writer and actor David Schneider, in an article about joke theft, quotes Tim Vine as saying it takes a lot of work to make a good joke and Schneider himself goes on to describe the birth of a joke as a long and painful process which is why we hate it when they *are appropriated+.199 These statements reflect the feeling of comedians that the amount of work which goes into a joke is one of the key reasons for the norm against appropriation. Joe Rogan states that there is nothing more frustrating to me than seeing someone pretending that they came up with some genius [material] that someone else worked really hard to form.200 The Lockean justification theories,201 therefore, are inherent in the norms system; the joke is the property of the creator due to the labour used in creating the joke and accordingly, the creator should be the only one to benefit from the joke. Reward Arguments
199
Schneider, D. Stop! (Joke) Thief. Accessed at < http://daveschneider.co.uk/2009/11/stop-joke-thief/> on 16/04/2012. 200 Rogan, J. Carlos Mencia is a weak minded joke thief. Accessed at < http://blog.joerogan.net/archives/92> on 16/04/2012. 201 n20 above
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Applied to comedy, reward arguments would state that the creator of comedic material should be rewarded for that creation and should receive any resulting money, acclaim or reputational benefits.202 Reward arguments are inherently present in the system of social norms and many of the accounts given by comedians focus on the idea that the appropriator should not benefit from the work, because this prevents the creator from being rewarded.203 Incentive Arguments Financial incentive arguments204 are less present in the social norms system. Comedians seem motivated to create by a love205 or appreciation206 for comedy, as opposed to financial considerations. It can be inferred that many comedians would create regardless of financial incentives, although it is difficult to imagine that comics would not at least consider the financial implications of success. However, this inference is affected by two factors. Firstly, the incentive arguments rest on the idea that the minimum incentive must be to recoup the cost of creation,207 but in this instance, the cost of creation is very low as creation can realistically take place with nothing but paper and a pen. Whilst the time spent writing material may be seen as a cost, the love of comedy referred to above means that most comics would be unlikely to see this as a burdensome activity. Secondly, determining the justifications which the system of social norms is based on is heavily dependent on the accounts given by comedians. This leads to a potential reliability issue, because it is to be expected that comedians who profess to love comedy may be reticent when it comes to
202 203
n19 above n199 above; n200 above 204 n19 above 205 n200 above 206 n12 above 207 n19 above
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discussing financial incentives to create. More apparent in the social norms system are nonfinancial creation incentives. Comics state that they are motivated by success and the approval of their peers.208 Artistic Integrity Protecting the integrity of the art form of stand-up comedy seems to be one of the most important, if not the single most important, justification underlying the social norms system. Interestingly, the literature does not mention any parallel justificatory theory for copyright. This proposal that artistic integrity should be seen as a further justification stems from the fact that appropriation of material is so widely condemned in the stand-up comedy community.209 Essentially, it appears that comics see joke theft as a moral offence against comedy, because stealing jokes undermines the originality which is so important to comics. Rogan stresses the need for defending the integrity of this great art form210 and this is because writing comedy is an amazing skill and an incredibly under-appreciated art form.211 Rogans account is an unintentionally lucid212 insight into the principles of artistic integrity in comedy. Whilst conceived as an attack on Carlos Mencia, Rogan manages to explain many of the concepts which lead to a feeling that joke theft undermines artistic integrity. Lee believes that notions of artistic integrity are more prevalent amongst the newer generation of comedians and he argues that alternative comedians, with their post-punk
208 209
n6 above; n200 above n200 above 210 n200 above 211 n200 above 212 Comedy is nothing if not varied and it is important to appreciate the opinion of any comedian when discussing these matters and Rogan explains, in plain English, many of the important factors which cause comedians to feel so strongly about appropriation. However, the particular blog being referred to is sponsored by a sex toy, an image of which appears in the side column. Whether or not this means Rogans article should be afforded less academic weight is a choice for the reader.
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aspirations towards some vain ideal of artistic integrity have been quick to demonise the old club-scene comics as amoral thieving magpies.213 These accounts reveal that the notions of the artistic value of comedy are so strong that to deviate from one of the established rules of comedy is to offend the art form itself. Herein lies the root of the justification; originality is key and appropriating material devalues the art-form, by reducing originality. In order to protect the art-form, it is therefore necessary to encourage originality and deter appropriation. Conclusions Having assessed the presence of the underlying justifications in both the copyright and social norms systems, it is possible to conclude that several of the same justifications are evident in both systems. Given that both systems are based on the same underlying principles, it may be argued that the systems are more similar than they seem at first glance. This suggestion will be considered in more detail in due course. The justifications also allow a verdict to be made regarding the legitimacy of the social norms system. Given that the social norms system has been found to largely rest on the same principles as copyright, it is suggested that the system is in place for legitimate reasons. At the outset of the discussion of the justifications in the social norms system, a question was asked as to whether the justifications were more closely reflected than in copyright, due to the informal nature of the system. Without further consideration, it is not possible to give a conclusive answer to this question, but it is certainly possible to say that comedians, who are responsible for policing and enforcement, reveal the influence of the justifications
213
n12 above
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in their accounts. Related to this is the potential for the exact justification being considered to depend on the individual who is policing or enforcing the social norm. The system is controlled by individuals who have their own reasons for wanting the system to operate effectively, in contrast to copyright, where enforcement is conducted by the state, which is independent of any dispute. Consequently, each individual will use the system according to their own personal view as to how the system should operate. For example, a comic motivated by money may use the social norms to ensure that he is properly compensated for his work, in line with reward arguments; in contrast, a comic who is more focussed on protecting the art form of comedy may use the social norms system to condemn appropriation, but with no personal gain. In short, the nature of the social norms system is such that in any given incidence of joke theft, the system may be used in line with one, all or even none of the justifications which have been highlighted; it simply comes down to the individual. This leads to one final point, individuals operating on the basis of their own justifications makes it very difficult to identify the justifications and impossible to develop a picture of a complete set of justifications which are consistently applied. Comparison Oliar and Springmans social norms system seems to be backed up by other sources, such as interviews given by comedians and it provides a coherent and logical explanation for the lack of litigation, which was considered above. Given the supporting evidence to be found in comedians accounts, it is proposed that Oliar and Springmans system should be accepted and treated as accurate, subject to the reservations already expressed. In order to assess
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the value of the social norms system, it must be compared with formal legal protections, to determine whether there are any advantages of a norms-based system. The scope of the social norms system is far wider than that of formal copyright protections, as it covers the appropriation of ideas as well as the expression of ideas. To comedians, the appropriation of an idea is just as bad as the appropriation of an expression, 214 meaning this expansion in scope is a practical measure to make the protections more appropriate for those they are intended to protect. In a similar vein, there are no formal requirements in order for a work to be protected; all works are protected as long as a comedian can prove that they wrote a joke, they will be entitled to benefit from the protections. Another advantage of the social norms system is the speed of resolution. The full completion of a case in the civil courts, including potential appeals, may take years. But in the norms system, as soon as an appropriation is detected and the offender refuses to repent, a sanction can be enforced. In the case of violent sanctions, the process can be completed within minutes of the appropriation taking place. However, this highlights one of the main dangers of the norms system: incorrect detection of appropriation. The example given by the comedian Phill Jupitus illustrates this perfectly.215 Jupitus says that in the late 1990s, his act contained a joke about lions hunting chickens, which he then saw Billy Connolly perform gesture for gesture. An incensed Jupitus was later shown footage of Richard Pryor doing the same joke in the 1970s. Seemingly, a comedian who is passionate about his work is not always in the best position to accurately judge whether his material
214 215
n191 above Jupitus, P. The business of stealing laughs The Guardian, 18/02/2009. Accessed at <http://www.guardian.co.uk/theguardian/2009/feb/18/comedy-joke-theft-lee-hurst> on 16/04/2012.
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has been appropriated, but had Jupitus chosen to instigate sanctions against Connolly he would have done so on the basis of an incorrect detection.216 It was noted above that some of the potential sanctions for joke theft can have the effect of ending the career of a comedian, by preventing him from obtaining work. Similarly, physical violence could be suffered by a joke thief. These sanctions are serious and whilst, rightly or wrongly, seen as legitimate by the comedy community,217 they are imposed on the basis of the subjective view of the individual inflicting the punishment. There is no process of evidence gathering, nor any burden of proof; rather the whole system simply relies on the individual or individuals who are involved in imposing the sanction. The result of this is that one comic, with sufficient influence and contacts in the community, can effectively end the career of another comic, in the absence of any solid evidence of appropriation having occurred. Obviously, this is an assessment of the furthest extreme of the situation; the community as a whole, which is required to assist in the imposition of sanctions, must be seen to act as a safeguard. Another potential safeguard, which can be seen to prevent the improper imposition of sanctions, is the negotiation process described by Oliar and Springman. If, for example, a comedian has subconsciously appropriated material or has created independently, the negotiation process is a chance for an apology to be made and for a cooperative solution to be reached. However, it is also possible for parties to negotiate prior to the commencement of litigation when operating under formal law and the benefit in this instance is that a contract can bind the parties to what is agreed in the course of the negotiations. That which is agreed will form the basis of a legal document, meaning that if one party admits to
216 217
n6 above at 1815 n6 above at 1820
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appropriation the claimant in any subsequent litigation will have evidence of that admission. Contrast this to the norms system, where the agreement is informal and, albeit under the threat of sanctions, the appropriator can perform the material again the next night and then tell the community that no such agreement was made. The certainty afforded by the prospect of contractual relations must be seen as a benefit of using legal enforcement methods. The range of sanctions available in the norms system must be compared with the remedies available under copyright law. As detailed in Chapter 2, the primary remedies for copyright infringement are injunctions and damages. These remedies focus on compensating the copyright owner for any loss suffered and stopping the conduct of the infringer, which interim injunctions can do very quickly. In contrast, the sanctions in the social norms system are intended to immediately stop the appropriation and to deter future offending by either the individual being sanctioned, or any other member of the community. In effect, the sanctions in both systems have relatively similar effects; both prevent the offender from further using the work, both attempt to deter other, would-be offenders and both damage the offender financially, although the social norms system does this indirectly, by damaging career prospects. An issue which must be contemplated is the effectiveness of the sanctions in the social norms system. Oliar and Springmans study gives little indication of this, so it is necessary to make a judgment based on the available information. In support of the sanctions, the lack of litigation may be taken as tacit confirmation that the sanctions work. If they did not work, it is likely that comedians would have tried to utilise copyright law to enforce their rights. Conversely, the great deal of accusations made suggests that theft is still prevalent. One of
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the most interesting features of the accusations of joke theft which have been discussed here and in the media is the individuals involved. In virtually all reported instances, the accused is a well-known comedian, with an established career. This can be seen in the accusations made against Dennis Leary,218 Carlos Mencia,219 Jim Davidson,220 Joe Pasquale,221 Dane Cook222 and Robin Williams;223 in all of these instances, the comedian accused of joke theft is well known and either enjoys or previously enjoyed considerable success. Furthermore, none of the careers of those listed above seem to have been particularly damaged by the allegations. Mencia, who bears the brunt of the strongest and most convincing allegations has gone on to appear in films224 and still performs to large audiences. This may be seen to suggest that the sanctions imposed by the social norms system are not able to deter established comedians, who may be too popular to be damaged by the allegations. A possible explanation for the apparent lack of career damage caused by these allegations is public apathy. Oliar and Springman suggest that whilst comedians may be strongly against joke theft, audiences are only interested in having a good time at the show and do not mind whether they are laughing at material written by the performer, or stolen from another comic.225 In a similar vein, club owners and those in the television comedy industry are often relied upon to assist with the performance of sanctions, by refusing to offer work to joke
218 219
n199 above n200 above 220 n11 above 221 n12 above 222 The Comedy Nerds, Is comedy justice blind? Accessed at <http://www.thecomedynerds.com/2010/08/joke-stealing-is-comedy-justice-blind/> on 16/04/2012. 223 n222 above 224 Famuyiwa, R. Our Family Wedding, 2010. (Fox Searchlight) 225 n6 above at 1824
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thieves.226 However, when the individual in question is a famous comedian, they may well decide that upholding the moral standards of the community is not as important as making money.227 Audiences are the ultimate paymasters of most comedians, whilst club owners and television executives facilitate the exposure which is necessary for a successful career. Without the support of these groups, it is impossible for the sanctions in the social norms system to significantly affect an established act, leading to the undesirable position whereby these famous comedians are essentially beyond the reach of the system and therefore able to appropriate material without considerable consequences. Effect of IP Norms on Creative Product The majority of the points made by Oliar and Springman are well argued and seem correct, but issue must be taken with their assertion as to the effect which intellectual property norms have on the creation of stand-up comedy material. They suggest that the change in the style of stand-up comedy, from vaudeville-era one-liners to opinionated and narrative modern comedy, can be partly attributed to the effect of the social norms system. 228 This is suggested to occur because social norms increase the cost of appropriation, causing comedians to invest more in creation of both content and performance style. 229 It is, however, acknowledged by Oliar and Springman that norms are not the only reason for
226 227
n6 above at 1818 n6 above at 1824 228 n6 above at 1854 229 n6 above at 1854
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changes in comedic style,230 but they do insist that social norms and comedy style have evolved together and are essentially interdependent.231 It is true that stand-up comedy has changed and evolved since its emergence and Double concurs with the assertion that this has entailed a change from one-line gags to more narrative material.232 Likewise, other accounts support the suggestion that the norms system has developed over time from a position whereby free appropriation occurred to a strong norm against joke theft.233 Nevertheless, Oliar and Springmans theory must be rejected. There is no evidence to prove a causal link between the development of norms and changes in the style of comedy. However, that is not to say the link is coincidental; on the contrary, it is submitted that both the development of the norm against appropriation and the changes in style of comedy come from the same root cause, but that neither one is the cause of the other. The flaw in Oliar and Springmans reasoning is their failure to take into account a multitude of factors which cause changes in comedic style. Perhaps the best illustration of such factors is the emergence, in the 1980s, of alternative comedy.234 Club comedy, performed by the likes of Bernard Manning, Stan Boardman and Tom OConnor,235 was the dominant form of comedy in the 1970s.236 The era was characterised by a focus on short jokes, which were widely appropriated, with appropriation being seen as
230 231
n6 above at 1855 n6 above at 1855 232 n4 above at 29-39 233 n12 above 234 n4 above at 39 235 n4 above at 36 236 Lee, S. How I escaped my certain fate (Faber and Faber; 2011) at 3
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normal and acceptable.237 Stewart Lee describes 1970s comedy as dated and dubious working mens-club comics laughing at Pakistanis, poofs and their wives mothers.238 1979239 saw the emergence of alternative comedy, which involved more narrative, opinion-based comedy, with longer jokes and an absolute intolerance of appropriation.240 The content was also different; in contrast the racism and sexism of the 1970s, alternative comedy was politically correct and, indeed, political.241 Clearly, the emergence of the social norm against appropriation occurred around the same time as alternative comedy came to prominence. However, there are numerous other factors which, it can be argued, caused alternative comedy to become prominent. Firstly, alternative comedy was seen, by those involved, as a revolt against the club comedians who had dominated the 1970s.242 Peter Rosengard, the founder of Britains first alternative comedy venue, the Comedy Store,243 states that he felt like the pioneers of alternative comedy did for comedy what the Sex Pistols had done for rock n roll.244 Likewise, the comedian Arthur Smith describes alternative comedy as comedys answer to punk.245 These accounts, given by those involved in the emergence of alternative comedy, reflect a desire to revolutionise comedy and change its style, rather than a need to be original to avoid breaching the norm against appropriation.
237 238
n236 above at 3 n236 above at 3 239 Wilmut, R. and Rosengard, P. Didnt you kill my mother-in-law?: The story of alternative comedy in Britain (Methuen; 1989) at 20 240 n4 above at 39 241 n236 at 5 242 n239 above at 14 243 n239 above at i 244 n239 above at 12 245 Smith, A. My name is Daphne Fairfax: A memoir (Arrow; 2010) at 145
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Secondly, the political landscape of the late 1970s and early 1980s must be considered. Margaret Thatcher was elected Prime Minister in 1979 and her unpopular policies led to strikes and unrest. New comics, many of whom were young, radical, working-class and perhaps also unemployed and somewhat disenchanted,246 used political satire in their comedy to talk about issues such as unemployment and youth poverty, which directly affected their audiences.247 Alternative comedy was therefore, according to Lee, born in opposition to political and entertainment establishments.248 Lee also notes the propensity of comics in the 1980s to find any level of commercial sustainability to be selling out. 249 This stands in contrast to Oliar and Springmans suggestion that comics change style due to the effect of the norms system on the costs and benefits of appropriation. Interestingly, Rosengard, who is credited as the man who kicked off alternative comedy, 250 admits that when he attempted to perform comedy, he liberally borrowed251 jokes from other comedians. From this, it must be inferred that the norm against appropriation was not the driving force behind alternative comedy. It has been demonstrated that a number of factors contributed to the emergence of alternative comedy, but it has been shown that intellectual property norm against appropriation does not appear to have been one of them. However, it appears to be true that both the norm against appropriation and alternative comedy were a product of the notions of artistic integrity which were so prevalent in 1980s comedy. It is, of course, possible that changes in style at other times or in other countries were the result of social
246 247
n239 above at xiv n239 above at xiv 248 n236 above at 5 249 n236 above at 6 250 n239 above at xv 251 n239 above at 12
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norms; but, given that the change in style in Britain coincided with the emergence of the norm, it must be doubted that social norms can ever have a causal effect on the style of comedy. Conclusion Oliar and Springmans suggestion that a social norms system governs intellectual property in stand-up comedy appears to be legitimate and is supported by accounts found elsewhere. The system is informal and is controlled by the community, which is responsible for detecting breaches and enforcing sanctions. Comparison of the social norms system with copyright law revealed that the social norms system has a number of benefits over formal legal protections, but may not be fully effective in all instances. It has been argued that social norms are not capable of causing changes in comedy style.
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Chapter 4 Improving the Social Norms System

In the previous chapter, the social norms system which regulates intellectual property rights in stand-up comedy was described and compared with the formal legal provisions. It was concluded that whilst largely effective, there were certain circumstances in which the norms system failed to provide adequate protection to comedians, such as when established comedians steal material or when sanctions are ineffective due to apathy on the part of either the public or those in the comedy industry. This chapter will build on that conclusion by assessing the ways in which reference to other self-regulatory bodies and theories may be used to improve the operation of the social norms system, in order to make it more effective. Firstly, the prospect of increased use of formal law alongside the social norms system will be discussed. A comparison with press self-regulation will follow, leading to an assessment of whether comedians may learn lessons from other regulatory systems. Finally, the prospect of improving the regulation of intellectual property rights in stand-up comedy by introducing an alternate system or by adding elements to the existing system will be considered. Inherent in this final point will be determining the effect of increased formality of the social norms system. Improving the system through increased use of existing legal provisions The first potential way of reducing the amount of copyright infringement in stand-up comedy is to increase the use of the existing legal framework. It was earlier noted that there is not a single recorded instance of a comedian suing another comedian for joke theft 252 and this was attributed to a number of factors including cost and difficulties of proving
252
n6 above at 1789
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allegations to the legal standard required. However, it is important to consider the deterrent effect which increased litigation would have. Whilst the social norms system appears to have prevented a lack of creation and protected rights in most instances, it could be argued that the system would be even stronger if underlined by the threat of recourse to legal proceedings. For example, Carlos Mencia was punished by the norms system sanction of reputational damage when he was confronted by Joe Rogan253 and mocked by South Park.254 However, these sanctions have not severely damaged his career and he even made a joke about the allegations, which suggests he does not take the sanctions particularly seriously.255 Perhaps if Mencia had faced the prospect of expensive legal proceedings, he would have been more likely to accept the social norms sanction in order to put an end to the matter. Such a system would resemble Ayres and Braithwaites model of Responsive Regulation.256 In a system of responsive regulation, the authors argue, regulation should respond to industry conduct.257 A key part of responsive regulation is the escalation to a more intrusive and formal type of regulation in the event of self-regulation failing.258 Applied to comedy, this would entail recourse to formal law in the event of social norms failing to prevent appropriation. Ayres and Braithwaite argue that the threat of legal sanctions results in a higher probability of compliance.259
253 254
n195 above n196 above 255 Carlos Mencia admits to stealing jokes, 2010, online video. Accessed at <http://www.youtube.com/watch?v=_niS_cg8EEU> on 16/04/2012. 256 Ayres, I. and Braithwaite, J. Responsive Regulation: Transcending the Deregulation Debate (Oxford, 1992) 257 n256 above at 4 258 n256 above at 4 259 n256 above at 19
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Clearly, a system of responsive regulation, where the law is used where social norms fail, would have a deterrent effect on comedians who may otherwise appropriate. Unfortunately, the prohibitive factors260 which prevent use of the legal provisions remain and it is therefore regrettable that developing responsive regulation is not a viable method of improving the social norms system. In the absence of a suitable legal framework to facilitate responsive regulation, it is necessary to consider whether the social norms system may benefit from being formalised. To determine this, the Press Complaints Commission, a formal self-regulatory body, will be examined. Self-regulation is a system where an industry regulates itself, absent of any legal regulation.261 The British Print Media is regulated by the Press Complaints Commission (PCC), a body established and funded by the industry, with a Code of Practice drawn up by national and regional editors.262 Similarly, in terms of intellectual property rights, the social norms system in stand-up comedy is a form of self-regulation. The Press Complaints Commission An appreciation of the creation, history and remit of the PCC will facilitate the comparison with the social norms system. The PCC was formed in 1991 by the Newspaper Publishers Association and the Newspaper Society.263 This was a reaction to the Calcutt Report,264 which had recommended the creation of an independent Press Complaints Commission to replace the failing Press Council.265 The Report stated that the PCC should be one last
260 261
See Chapter 3, above n256 above at 101 262 Press Complaints Commission, History of the PCC. Accessed at <http://www.pcc.org.uk/about/history.html> on 16/04/2012. 263 Jordan, B. Self-regulation and the British press 22(8) Ent. L.R. 242 (2011) at 243 264 Calcutt, D. Report of the committee on privacy and related matters, 1990 (London: HMSO) (Cm 1102) 265 n264 above at 14.38
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chance for the press to prove that self-regulation could be effective266 and that should it fail in this instance, statutory regulation should be introduced.267 Accordingly, it was in the best interests of the press to ensure that the PCC was a success and therefore avoid potentially stringent, expensive and restrictive statutory regulation.268 In 1993, Calcutt recommended that the proposed statutory regulator be introduced.269 However, the Government chose to persist with the PCC and the Press Standards Board of Finance was established in an attempt to introduce a degree of financial independence. 270 The current remit of the PCC is to issue rulings on the complaints which it receives, to prevent breaches of the Code of Practice with pre-publication advice and where appropriate, to negotiate a remedy or make an adjudication.271 The commission consists of 17 members, ten of which have no connection to the industry and seven of which are editors of newspapers.272 Criticisms The Culture, Media and Sport Select Committees Report: Press Standards, Privacy and Libel273 details a number of criticisms which have been made of the PCC. However, the report was published just months before the 2010 General Election and it may not be unreasonable to suggest that this may have been a point in time at which the Ministers responsible for the report would not have wished to upset the press. Accordingly, the report could be said to lack the strong recommendations which might have been appropriate.
266 267
n264 above at 14.38 n264 above at 16.1 268 n263 above at 242 269 n264 above 1993 at 16.14 270 n263 above at 243 271 Press Complaints Commission, What is the PCC? Accessed at <http://www.pcc.org.uk/AboutthePCC/WhatisthePCC.html> on 16/04/2012 272 n271 above 273 Culture, Media and Sport Committee, Press Standards, privacy and libel (HMSO: 2010) HC362-I
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Firstly, the report states that the PCCs use of adjudications as sanctions, in the absence of the power to impose fines, has been criticised.274 Complainants such as Max Mosley and the McCann family do not feel that the PCC has sufficient powers to properly deal with issues.275 On the contrary, the editor of the Daily Mail, Paul Dacre, stated in his evidence to the report that no editor wants the shame associated with an adjudication and that adjudications are therefore the most effective sanction.276 Similarly, the PCC argued that should it obtain the power to issue fines many publishers would simply opt out of the system; attempts to sanction would become long legal cases and the body would need to be put on a statutory footing in order to have such a power.277 The Select Committee report rejects these concerns and recommends giving the PCC the power to impose fines on publishers which are in breach of its code.278 Secondly, the report notes concerns regarding the independence of the PCC, specifically the fact that newspaper editors are members of the PCC.279 For example, Max Mosley, in his evidence, stated that he did not contemplate making a complaint to the PCC because the editor of the newspaper he wished to complain about, Mr Dacre of the Daily Mail, was the chairman of the PCC Code Committee.280 The report recommended increasing the number of non-press members of the PCC to at least a two thirds majority.281
274 275
n273 above at 518 n273 above at 535 276 n273 above at 520 277 n273 above at 522 278 n273 above at 575 279 n273 above at 540 280 n273 above at 536 281 n273 above at 542
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Thirdly, the report notes criticisms of the prominence of apologies and corrections. 282 It is suggested in evidence that whilst an incorrect headline could feature on the front page, the apology may be on the second page and cover only a fraction of the size of the original. 283 The report recommends that apologies should be on the same or an earlier page, but does not go as far as recommending that apologies be the same size.284 The criticisms of the PCC came to a head in July 2011, in the wake of the so-called Phonehacking scandal.285 The Prime Minister, David Cameron, stated that the PCC was ineffective and called for a new system.286 The ongoing Leveson Inquiry has revealed the extent of improper journalistic practice287 and it is therefore fair to say that the PCC has failed in its duty to regulate standards in the print media. Comparison Both stand-up comedy and the print media can be seen as self-regulating industries. The self-regulation of the press is more formal, due to the existence of the regulatory body and a published Code of Practice. However, a number of similarities persist; both systems have rules established by the industry, both have sanctions which are intended to shame offenders, both seem to have difficulty preventing breaches of rules when large amounts of money are involved and both are voluntary systems, which technically have a legal alternative.
282 283
n273 above at 570 n273 above at 570 284 n273 above at 573 285 Jeffery, S. and Fenn, C. Phone hacking interactive timeline The Guardian. Accessed at <http://www.guardian.co.uk/media/interactive/2011/jul/09/phone-hacking-timeline> on 16/04/2012. 286 BBC News, Phone hacking: Cameron and Miliband demand new watchdog. Accessed at <http://www.bbc.co.uk/news/uk-politics-14073718> on 16/04/2012. 287 http://www.levesoninquiry.org.uk/ (Accessed 16/04/2012)
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As stated above, the objective of this chapter is to find ways in which the social norms system could potentially be improved. In Chapter 3, it was suggested that the social norms system is relatively effective in preventing the majority of comedians from appropriating material, but it was also argued that problems persist, particularly in relation to more famous comics. Consequently, to improve the system, it is necessary to find a way of plugging the gaps which exist in protection and by doing so find a system which would provide complete protection to all comedians against appropriation by all other comedians, regardless of stature or financial resources. Most self-regulating industries have a body,288 such as the PCC, to enforce the rules which have been decided by its members. It is, therefore, interesting to consider whether such a body could be created by comedians. The advantages of creating such a body would be numerous. Firstly, like the PCC, the body could resolve disputes faster than the courts and for a lesser cost. Secondly, an expert body may be better equipped to deal with disputes than courts which may be unfamiliar with comedy and therefore unable to determine whether appropriation has occurred. A major benefit would be the potential to create an international body, which would allow cross-border enforcement, free of concerns about jurisdiction. This would mean a comedian in the UK could obtain a remedy against an American comedian easily and because, in the age of the internet, comedy is an international art-form, this would be an exceptionally useful feature of such a body. Despite these apparent benefits, the PCC has demonstrated the perils of self-regulation and these must not be ignored.
288
For example, the Press Complaints Commission, the General Medical Council and the Internet Watch Foundation
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It is easy to foresee concerns over the ability of a voluntary self-regulatory body to have a robust effect on preventing appropriation. The effectiveness of such a body would rely on virtually all comedians becoming members and submitting to the authority of the body. This is a problem from which the PCC has recently suffered. In January 2011, the publishing group Northern & Shell withdrew its funding of the PCC, meaning it had effectively left the jurisdiction of the PCC.289 Consumers are therefore unable to complain about several publications which are owned by Northern & Shell, which include the Daily Express, OK! Magazine and the Daily Star;290 this leaves a gap in the regulation. Should comedians choose not to voluntarily submit to the authority of any body, there would seem to be little which could be done. The strength of sanctions imposed by the PCC was criticised in the Select Committee report, as discussed above. It would be important for a comedians self-regulatory body to have recourse to an appropriate range of sanctions, capable of preventing appropriation. Furthermore, the sanctions would have to be more effective than those which are currently applied in the social norms system. This would mean either improving the existing sanctions or introducing new sanctions. In terms of improving the existing sanctions, the regulatory body would need to ensure that those sanctions were able to affect all comedians, regardless of fame. Perhaps the only way to accomplish this would be to secure the co-operation of comedy venues and booking agents, such that a blacklist of sanctioned comedians could be issued in order to deny them work.
289
Press Complaints Commission, Statement on Northern and Shells withdrawal from press self-regulation system. Accessed at <http://www.pcc.org.uk/news/index.html?article=Njg3NA==> on 16/04/2012. 290 http://www.northernandshell.co.uk/about/index.php (Accessed on 16/04/2012)
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The creative sanctions, such as that used by Stewart Lee against Joe Pasquale,291 bear some resemblance to what, in more formal circumstances, would be called naming and shaming. The regulatory body could adopt a naming and shaming approach, such that the details of infractions could be released and thereby damage the reputation of the offender. The more formal and authoritative nature of this negative publicity may impose shame, which Paul Dacre argued is so effective in ensuring compliance.292 New sanctions, such as fines and forced apologies may be considered, but according to the Select Committee report, it is likely that this would result in refusal to submit to the authority of the body.293 It is therefore suggested that any regulatory body would have to act within the existing sanctions. Given the concerns about guaranteeing submission to the authority of the regulatory body, it is unlikely that such a body would be successful. An interesting proposal, unrelated to the effectiveness of a regulatory body for intellectual property in comedy, is the potential for the body to hold a register of jokes. Comedians could file jokes upon creation, which would allow for a priority date like that used in the patent system. The benefit of this would be that in the event of a dispute, there would be a clear source by which to determine the first owner of copyright. Furthermore, the regulatory body could allow comedians to access and search the database, to determine whether a joke which they had created had previously been used. This could reduce the incidences of disputes arising, but may also stifle creation if comics registered too many
291 292
n13 above n276 above 293 n277 above
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jokes, similar to patent thickets. There is not scope here to fully explore this idea, but it is interesting nevertheless. Law/Norms When considering the increase of formality, the concerns of Oliar and Springman must be taken into account. They assert that there is a question as to whether the increase introduction of legal protections would be likely, on balance, to further reduce incidents of joke stealing, or whether the opposite result would be achieved.294 Oliar and Springman suggest that this is due to the complex interaction between law and norms295 and it is possible that law may strengthen norms by underlining the immorality of appropriation. 296 Alternatively, formal law may erode social norms if the law was felt to be illegitimate.297 Crucially, Oliar and Springman argue, the current system of community enforcement of social norms could be damaged by recourse to formal law because comedians may lose the sense of responsibility and feel that control of appropriation is someone elses job. 298 Conclusions In the opinion of Oliar and Springman, it seems that the increased use of formal law may damage the effectiveness of the system of social norms. However, considering the notions of artistic integrity on which the social norms are based, this conclusion may not be fully correct. True, it is feasible that if enforcement came to be seen as the job of the law, comedians may stop doing it themselves; but it is difficult to imagine that a comic would
294 295
n6 above at 1835 n6 above at 1835 296 n6 above at 1835 297 n6 above at 1835 298 n6 above at 1836
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stop trying to protect what he perceives as the integrity of his beloved art-form, simply because other comics start suing each other. Perhaps the effect which increased use of formal law would have on social norms is a moot point. The demonstrated difficulties of introducing formality to the social norms system mean that the introduction of formality is unlikely to ever occur. Firstly, because formal law is too expensive and it is too difficult to prove infringement and secondly, because there are simply too many difficulties associated with the effective formation of a regulatory body. For the time being, therefore, it is necessary to conclude that the methods considered do not amount to viable or practical ways of improving the social norms system.
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Chapter 5 Conclusions
At the outset of this work a simple question was asked: can a joke be owned? The answer, in English copyright law, was discovered to be yes, jokes are copyrightable. From a relatively straightforward question, a number of interesting legal and socio-legal issues emerged and attempts were made to develop analysis on many of these. Under the Copyright, Designs and Patents Act 1988, literary and dramatic works subsist in comedy performances, meaning that subject to a work being recorded, qualified and not excluded on the grounds of public policy, the author of a joke owns copyright in it. The owner of copyright has the exclusive right to perform the work and, therefore, the performance of the copyright work by another comedian amounts to an infringement of copyright. Such an infringement, if proven, would leave the infringing party liable to pay damages and even serve a prison sentence. Having established that jokes are technically copyrightable, it became pertinent to ask why there is no case law regarding infringement of the copyright in a joke, especially in light of evidence to suggest that the practice of joke theft is relatively frequent. It was then established that the lack of litigation can be explained by prohibitive factors such as the cost of bringing a claim, the limited resources of defendants and the difficulty of proving that the defendants work is derived from that of the claimant. This led to the suggestion that other factors must regulate intellectual property rights in stand-up comedy, otherwise creation would cease. The system of social norms, described by Oliar and Springman, was accepted as a convincing explanation of how intellectual property could be protected in the absence of any reliance on legal provisions.
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The norm against appropriation was considered at length and it was argued that the norm operates as a blanket ban on appropriation, with no exceptions. The range of sanctions in the social norms system was also considered, with the conclusion that they may well be more effective than the sanctions available to courts. A comparison of the formal legal provisions and the informal social norms revealed several ways in which the norms system may be more effective than formal law, but it was noted that the system was not infallible and could be said to fail when dealing with famous and established comedians. In light of the assertion that the social norms system prohibits appropriation well, but could do better, potential methods of improving the system were suggested and discussed. It was argued that neither increased reliance on formal law as part of a responsive regulation system, nor the introduction of a formal self-regulating body could be expected to improve the system. Final Thoughts It is regrettable that the law is not better adapted to protect the intellectual property rights of stand-up comedians. However, in spite of this, a remarkably effective system of social norms has developed. This is not to say that the social norms system is free of fault and the failure to effectively control established comics, as well as the unfortunate (if rare) use of violence as a sanction is proof of that; but given that the system was established by custom, with no formal oversight and no written rules, there are relatively few instances of joke theft. Copyright law and other creative industries have much to learn from the social norms system, particularly regarding the way in which informal community enforcement can fill
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the gap left by an absence of effective legal protection. Unfortunately, it is not possible here to consider how an informal system, possibly involving social norms, would affect intellectual property rights in other types of copyright work. This work has described the social norms system as effective and noted its positive role in protecting intellectual property rights. Still, it must be stated that this is not a particularly desirable situation. Parliament has legislated to protect intellectual property rights and has done so in terms which extend that protection to jokes and stand-up comedy. It should be the legal protection, rather than protection which comedians have developed themselves, which acts to prevent joke theft. The fact that the social norms system is effective should not divert attention from the need for the law to perform its function fully and to be accessible to those needing its protection. Perhaps then, the question that remains is this: Despite the impressive and effective informal social norms system, how can the law change to better protect the intellectual property rights of stand-up comedians?
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Jonathan Kiernan

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

A joke is a very serious thing --Winston Churchill

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Chapter 2 English Copyright Law

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Chapter 3 Social Norms

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

n6 above at 1815 n6 above at 1820

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy

Intellectual Property in Stand-Up Comedy