The full text of this Article may be found here.
30 Fordham Intell. Prop. Media & Ent. L.J. 55 (2019).
Article by Hannah Pham*
his Article reveals that while social norms offer protection to stand-up comedians against joke theft within the stand-up comedy industry, they do little to prevent joke theft outside the traditional comedy community. Joke theft has risen with the increased popularity and use of social media. In particular, joke aggregators such as “The Fat Jew” take and publish on social media jokes by other comedians. In the social media world, the norms system underperforms. Norms do little to protect against joke theft by joke aggregators because they exist outside of the industry and are unaffected by norms governing stand-up comedians.
This Article will utilize the perspectives and insights of several full-time professional stand-up comedians in order to understand the creative process underlying the writing and dissemination of jokes; the effects of joke theft on a comedian’s incentives to create and disseminate; and to consider how copyright law can play a greater role to protect against joke theft on social media. This is important because joke theft on social media harms a comedian’s pecuniary interests, a comedian’s control over his or her jokes, a comedian’s ability to disseminate his or her jokes and, as one comedian put it, “devalues the industry and what we do.”
This Article submits that there are no doctrinal barriers to copyright protection for jokes. Rather, comedians have not relied on copyright protection to protect against joke theft because there are practical barriers to court-enforced copyright protection for jokes (e.g., cost, complexity, and time). The Article examines two solutions in which the practical barriers to enforcing copyright protection can be reduced or removed: the existing DMCA notice-and-takedown procedure and the proposed Copyright Claims Board.
* Hannah Pham is a dual-qualified Australian and New York attorney. She wrote an earlier version of this Article as an LLM candidate at New York University School of Law. Hannah would like to thank Professor Jeanne Fromer for her insight and comments. Hannah would also like to thank the editorial staff of the New York Intellectual Property Law Association and the Fordham Intellectual Property, Media & Entertainment Law Journal for their editing contributions. Finally, Hannah would like to thank her husband Ronny Chieng for the laughs and the inspiration.