Stand-up comedians and copyright law: Who gets the last laugh?

Stand Up ComicI love stand-up comedians.  And I geek out over several actresses who have created and star in their own sitcoms.  I’ve talked about both on this blog, yet somehow I’ve never mentioned the great Roseanne Barr.  She is a brilliant stand-up comedian and her eponymous sitcom was brilliant and actually very edgy.  Plus, it introduced the amazing John Goodman to a broader audience.  And yet, until today, I haven’t talked about her.

To be fair, Roseanne hasn’t been around much lately so it was easy to forget about her for a while.  But she’s back now, on Last Comic Standing, with Russell Peters and Keenan Ivory Wayans (I’ve had a crush on him ever since In Living Color).  Last Comic Standing originally ran on and off between 2003-2010 and then restarted again this past year, with the brilliant Wanda Sykes as executive producer and JB Smoove as host (I loved him on Curb Your Enthusiasm!).  After listening to Roseanne on Stern the other day, which was a great interview, I realized that I needed to start watching Last Comic Standing.

Applause SignIt’s a fun show – the comics are pretty good and at least Keenan gives some decent criticism.  But, like most other reality shows, the producers spend too much time on back stories and not enough time on their routines.  On the other hand, over the years this show has helped the careers of some of my favorite stand-up comedians, including Kathleen Madigan, John Heffron, and Amy Schumer.

Meanwhile, from a legal standpoint, the show is interesting because it addresses part of an ongoing problem for stand-up comedians: protecting their artistic expression.  Over the years, the problem of comics stealing jokes from other comics has been a common problem, with the Joe Rogan vs. Carlos Mencia feud on this issue the most public airing of this problem.  Such behavior is unethical but difficult to stop.  I’ve heard comedians talk about tricks they’ve used to prevent such theft from happening.  For example, if a comedian with a reputation for stealing jokes enters a comedy club, the other comedians there will often flash the stage light to alert the comedian on stage, so that she doesn’t use her best material when a plagiarist is in the crowd.

Legally, is there a right comedians would have against such plagiarism? Yes.  Under copyright law they can sue somebody who infringes upon their copyrighted material.  The trick, however, is that copyright law only protects that artistic expression that has been fixed in some media.  So jokes written down or recorded are protected.  But if you come up with a great one-liner in a club some night and no one is recording it, then that joke isn’t protected and it’s up for grabs.  The same is true if you don’t write down all of your material.

TelevisionStudioControlRoomAnd this is where Last Comic Standing comes in.  By recording and broadcasting the comedians’ routines, their artistic creations are fixed and can therefore be protected.  There are other issues and challenges, however, with comedians copyrighting their material.  And some would argue that what’s important about a joke isn’t the words but the delivery, which can’t be copyrighted.

Ultimately, however, despite the challenges and questions comedians face in protecting their work, some comedians have decided to assert their legal rights over their creations.  For example, Abbott and Costello copyrighted their famous “Who’s on First?” routine.  And Jeff Foxworthy sued to protect his “You  might be a redneck” line.  Copyright may only be an option for the biggest comedians and routines, but at least comedians should know they have that legal option the next time someone steals their joke (which is never funny).

Previous articleBatman 1989
Next articleGilligan's Island of Liability
Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).