| The stories underscore a dilemma in comedy: The ease of stealing material has grown, while legal remedies for comedians have remained essentially the same. As Mr. O’Brien wrote in Variety, "With over 321 million monthly users on Twitter, and seemingly 60% of them budding comedy writers, the creation of the same jokes based on the day’s news is reaching staggering numbers."
I call that the Monkey Defense: Put enough monkeys in a room with iPads, and they’ll eventually churn out an exact copy of Mr. O’Brien’s monologue. Moreover, isn’t Mr. O’Brien conceding that he and his writers are overpaid? Maybe not. Writing professionally on a demanding schedule isn’t the same as being the life of your Twitter party.
The fellow who sued, freelancer Robert Kaseberg, alleged that the TV star stole from his social media feeds. In summary judgment, U.S. District Judge Janis Sammartino noted that monologue-style jokes are often based on news items, which themselves can’t be protected or "stolen." Therefore, she wrote, "although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations." She said the standard for infringement required "virtual identity."
Mr. O’Brien probably opted to settle because of what I call the House of Cards Effect. The last thing people in showbiz want is a successful lawsuit, which could lead to an avalanche of similar suits.
Louis C.K. is approaching joke-stealing from the opposite direction. He’s worried that after he performs new routines, cellphone video of his act will turn up on the internet, diminishing its value and perhaps even inviting fellow comics to borrow the bits. I call this Milton Berle Disease. Uncle Miltie was television’s biggest comedy star of the 1950s, famous for blatantly stealing from other performers—without being criticized much at all.
Times have changed. A 26-minute YouTube compilation lambastes Amy Schumer for recurrent joke thievery. Ms. Schumer’s chutzpah included going on Ellen DeGeneres’s talk show and doing parts of a routine that the host had herself performed years earlier. The video, uploaded in 2017, has been viewed nearly eight million times.
Mr. O’Brien’s case made the headlines because suing for joke thievery is difficult and rare. Louis C.K.’s story reminds us that comedians can’t do much to combat noncommercial use of their routines on social media—especially when fair-use provisions in copyright law permit republishing material for "transformative" purposes, such as critiquing it.
"You have a better chance of stopping a serial killer than a serial thief in comedy," the late comedian David Brenner once observed. Now everyone with a cellphone thinks he’s a photographer; every blogger claims to be an author; and millions of Twitter users fancy themselves comedians. I’d call that rather funny.
(c) Peter Funt. This column originally appeared in The Wall Street Journal.
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