Over at Slate's "Humor Code" series, the latest entry asks, "who owns a joke?" and whether you can sue over a stolen joke. Peter McGraw and Joel Warner cover some of the history of joke-stealing, from Milton Berle's bit about why someone else would sleep with his wife that originated in a 4th century joke book to the stuff about Carlos Mencia.
The short answer is no one owns the idea of mocking something, so you can't really sue over a joke that's worded differently. And if you wanted to, it'd be expensive. The authors look at the work of two legal scholars, Dotan Oliar and Christopher Sprigman, who probed the recourse comedians had for joke theft in the wake of the Mencia dust-up in 2007 and uncovered an informal set of rules comedians followed:
Those who don't follow the rules can face escalating repercussions. First they're subjected to badmouthing; then they get blacklisted from clubs. Finally, if the unacceptable behavior continues, it's understood that things might get physical. While none of the comics Oliar and Sprigman interviewed admitted to participating in or witnessing fights over stolen jokes, many had heard stories, and they accepted such violence as a possible, if remote, outcome. As one comedian told the researchers, " … the only copyright protection you have is a quick uppercut."
Far from being dismayed by this extralegal system, [Dotan] Oliar and [Christopher] Sprigman came away impressed by the comedians' informal arrangement. "They have managed to put together a community project that requires a pretty high-level amount of group coordination," says Sprigman. It's a lot better than the joke-stealing free-for-all of Berle's era. And it's hard to imagine a more formal joke protection system, involving copyright filings and other legal procedures, working well in a world where comics are constantly generating and tweaking new material. In fact, Sprigman thinks this joke-stealing code could work for other industries struggling with how to balance creativity and copyright issues, including the music and tech industries. They should borrow it.
You don't need there to be a law, after all.
h/t invisible furry hand