Inspired by a viral video of comedian Joe Rogan confronting Carlos Mencia onstage at The Comedy Store of joke stealing, they have researched the comedy club world for a year and examined the protective measures comedians take to ensure they aren't the victims of joke theft.
The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work — copyright law plays little role in comedy — why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?It doesn't really provide any legal recourse in IP for the comedians whose routines are pinched - if anything they draw a distinction between written with shared authorship and jokes/routines with multiple deliverers.
After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes — and that the system functions as a stand-in for copyright law.
Instead, there's a community enforcement regime in place. It's almost a vigilante/seeking your own justice kinda deal with comedians - they either get revenge by public shaming, boycotting clubs which hire the offenders, threats of physical violence - or they talk to the offenders, compare arguments of who told it first/longest and often simply come to an arrangement to avoid embarrassment or detriment.
Surely the performance of a very particular routine attracts some form copyright protection, right? You can't copyright an idea, but if the wording of a particular bit is replicated, it could possibly fall under Part III of the Australian Copyright Act? As a "dramatic work"? Maybe? Possibly? I don't know.
It's an interesting article to read though.
Here is the Joe Rogan v Carlos Mencia argument...