22 BACK PAGE law stories 23 October 2015 | www.newlawjournal.co.uk

cases where people assert that a joke has been copied when the subsisting elements of the original are too hazy. It is not enough to The laws of comedy allege that the information, thoughts, and Copyright is no laughing matter for an emotions that exist in the original joke have been infringed. The copying must either be aggrieved comic, says Athelstane Aamodt textual (the words of the joke), or non-textual (visual props à la Tommy Cooper or Carrot Top) and such elements would need to be highly distinctive. Working out whether or not a joke is original or not is also a problem. Jokes have been around for millennia. The “Philogelos”, a collection of jokes written in ancient Greek, date from approximately 4 AD. One joke, involving a buyer complaining about a dead slave that he has been sold, bears an uncanny resemblance to Monty Python’s “Dead Parrot” sketch. Others could—making certain allowances—be included in a contemporary stand-up routine. The same problems arise

© IStockphoto/onfilm with the observational nature of comedy. During comedy gigs at the Latitude Festival ecently, Twitter has started to bow to ff“Six out of seven dwarves aren’t Happy.” this year, I heard more than one comedian complaints from users that others on ff“I hate Russian dolls; so full of do routines about the Nutribullet (a small, the social network have been lifting themselves.” high-powered blender beloved of the middle Rjokes and passing them off as their ff“Velcro: what a rip-off.” class) that involved the same observations. own. Claims of joke theft are nothing new ff“Jurisprudence fetishist gets off on a This wasn’t plagiarism: merely the of course. Robin Williams, Keith Chegwin, technicality.” Zeitgeist shaping the comedians’ material Carlos Mencia and Denis Leary have all had independently. Plagiarism was, however, an allegations of plagiarism levelled at them It begs the question: how long does a issue at the Edinburgh Fringe this year; a one- during their careers. The comedian Josh joke need to be before law of copyright liner told by the comedian Darren Walsh won Ostrovsky, who calls himself “The Fat Jew”, will recognise its status as a work? There him the “funniest joke” prize: “I just deleted has long been accused by other comedians is, unsurprisingly, no clear-cut answer. all the German names off my phone. It’s of stealing people’s material, prompting one Some jokes are long and are rather like a Hans-free.” However, a stand-up comedian person to compile a list of the top 50 jokes monologue with a plot. They will (as long as called Pete Cunningham claimed that he first that Mr Ostrovsky is alleged to have stolen. they fulfil the criterion of originality) easily coined the joke seven or eight years ago and Joke theft makes comedians extremely be classified as a copyright work. But what shared it with Mr Walsh on Twitter in April angry; jokes are how they make their living. if a joke is short and exists at a high level of of this year (evidence of which exists). Mr What then would be the potential legal abstraction? Or is highly generic? If you take Cunningham did not threaten legal action but avenue available to an aggrieved comic? “Why did the chicken cross the road” and one wonders what a less relaxed and more change it to “Why did the pheasant climb aggrieved comedian would have done. What is a joke? the stairs?” does the mere premise of (a) a Apart from issues of originality, jokes also Jokes are written and designed to be bird; that is (b) moving, mean that there is a have a built in problem: for the most part performed, and for that reason they can be quality that is protectable? Does the anti- they are only truly funny once. They are most accurately described as dramatic works climactic punchline (“To cross the road”) perishable. Other works survive repeated (the Copyright, Designs and Patents Act 1988, warrant protection as well? viewings and hearings, jokes frequently do s 3). However, the nature of jokes can present not. This issue of transience arose with a joke problems for copyright law. How long, for Distinctiveness that won the prize for funniest joke at the instance, does a joke need to be to qualify Copyright law will protect a surprisingly wide Edinburgh Fringe in 2009. Dan Antopolski as a dramatic work? Copyright sometimes range of things, such as: came up with: “Hedgehogs: why can’t struggles with works that are too simple or ffbusiness letters; they just share the hedge?” However Mr too short. A good example is titles of things: ffexamination papers; Antopolski realised he would have to drop ff“Splendid Misery”; ffthe assembly instructions for a toy; the joke from his set because his audiences ff“The Lawyers Diary 1886”; ffthe printed material included in a diary; had already heard it and some of them might ff“The Licensed Victuallers Magazine”; ffa formula using symbols and numbers; assume that Antopolski had plagiarised the ff“Opportunity Knocks”; ffconsignment notes; and gag himself. Such is the curse of social media ff“Dr Maartens”. ffthe rules of a game. and the internet: if a joke is very funny and is publicised as being such, even its inventor None of the preceding examples were held That said, copyright struggles with will be viewed with suspicion for using it. to be capable of possessing copyright by the vagueness and indistinctness. It is for that Pun-ishment indeed. courts because they were deemed too short reason that attempts to assert the copyright I’ll get my coat… NLJ and/or non-distinct. Some jokes are also in simple geometric shapes such as a straight short. Classic examples include: line and a circle have failed. The same Athelstane Aamodt, barrister, 4-5 Gray’s Inn ff“Say what you want about deaf people.” standard would most likely be applied to Square Chambers (www.4-5.co.uk)