This is an interesting question because there’s no legal president on any matter involving comedians stealing from comedians. Therefore all of the rules are unwritten social contracts for which most comedians agree. So the best I can do is layout what I understand to be some of the unwritten, now written, contracts as I understand them.
No One Owns Any Premise
First let me offer my definition of a premise: a negative opinion about a subject. The premise’s function is to clarify what the comedian is talking about and what position is being taken on that subject.
For instance: Louis CK: my four year old daughter is an asshole. He cannot own the idea of talking about a daughter or that she behaves badly. There have been zillions of jokes made about misbehaving daughters. Therefore this subject and opinion are universal and public domain.
Comedians Own Their Jokes
Conversely, it’s accepted that CK does own the individual jokes that express the premise. They are not universal, but rather personal creations to communicate the humor to an audience. Therefore, he has a natural copyright on the specific wording of each joke or routine.
Here’s where it gets tricky. What if two comedians come up with the same premise, but have different jokes?
It’s a subject conflict and an opinion conflict, but not a joke conflict, so then they both have the right to perform the premise and their jokes. They have to live with that coincidence. As long as the jokes are different, neither of them owns the premise. Now they must decide to continue to use the bit or drop it because it’s too similar to another comedian’s.
Simultaneous Creation of Jokes
Here’s where it gets trickier. What if two comedians write the same joke?
I have had this happen to me back in the late 70’s. I wrote a joke after I’d seen a New Hampshire license plate with the state slogan: Live Free or Die. I thought, “License plates are made in prisons.”
I did the joke a few times and got really good laughs. Then I was watching the Tonight Show with Johnny Carson and Jay Leno was doing a stand-up set. He did the same joke with almost the exact same wording.
Now, I had to make a choice, do I continue doing a joke I wrote and take the risk of being considered a joke thief or do I drop the joke?
I dropped the joke because I could see how any comedian might have made the same observation and worded it pretty much as I had. Besides, I was just beginning and didn’t want to be seen as someone who took a joke from Jay Leno.
The point is there are many unstated and unwritten rules and points of etiquette within the world of comedy. It’s also unstated that it’s your responsibility to notice and adhere to these social contracts if you want to have a successful career in comedy.
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