5 Joke Theft Realities From A Stand-Up's View
Stolen material is one of the most frequent headaches in the comedy industry, right up there with prop comics, celebrity impersonations, and the fact that a lot of clubs haven't adjusted their comics' pay since the Reagan administration. Joke theft is hard to prove, yet shockingly easy to excuse if someone is famous enough. It's an insult to the people who put in the hard work, and there may not be anything we can do to stop it. So let's break down the problems here:
It Happens All The Damn Time, And Always Has
Joke theft has been around as long as comedy itself, and it's an ever-present nuisance in this business. Every joke we write not only has the potential to be stolen, but also runs the risk of being a little too similar to something someone else has already written. We don't have any real litmus test for originality in comedy, only our intuition (and sometimes Google). Patton Oswalt said it best in an interview with Vice back in 2017, "If you're a comedian, you know when something's been stolen. When something is not right. When clearly someone is doing something that is just not theirs."
I read an article once about how archaeologists had discovered a fart joke chiseled into an ancient Sumerian tablet, and my first thought was that the guy who chiseled that tablet couldn't have possibly come up with that line. I have no way of proving it, it's just a gut feeling. I like to imagine the ghost of the guy who did write that joke looking over the archaeologist's shoulder and thinking, "Hey, that's my joke! In Dave's handwriting?!? That son of a bitch!"
Ironically, the quote "Talent borrows. Genius steals." has been attributed to Oscar Wilde, T.S. Eliot, Igor Stravinsky, Pablo Picasso, and Andy Warhol. A lot of comedy legends have been accused of joke theft, and if this is your first time learning of some of the following examples, you have teams of damn good publicists to thank for that.
Bob Hope accused Milton Berle of stealing his jokes, and Berle didn't just admit it, he flaunted it. Bill Cosby admitted to ripping off one of George Carlin's bits, if you can wrap your head around that. Carlos Mencia hacked bits from Cosby, Ari Shaffir, Bobby Lee, half of L.A., etc. Robin Williams was so frequently accused of joke theft that he was rumored to have avoided watching other comics' sets out of fear that he'd accidentally hack one of their jokes during his fast-paced improvised riffs. Denis Leary ripped off Bill Hicks. Louis C.K. accused both Leary and Dane Cook of stealing his material. Carlos Mencia again, this time ripping off George Lopez. Amy Schumer was accused of lifting jokes from Patrice O'Neal nearly word-for-word. The list goes on and on.
I'm not saying that anyone that makes it in this business must've cheated somewhere along the way. I like to believe every famous comedian worked their asses off to get where they are. Some of them just took hustling a little too literally. Unfortunately, joke thieves thrive on being given the benefit of a doubt. What really sucks is when they fully cop to their thievery without having the decency to step aside and make room for someone with integrity.
Jokes Exist Almost Completely Outside Of The Law
Copyright laws are virtually meaningless when it comes to comedy. Theoretically, a comedian can claim legal ownership over a joke, but the law only applies to the specific wording of the joke. Someone else could come along and change as little as one word, and the original author's case against the thief begins to unravel. Legally speaking, the thief was only copying the idea of the joke, and ideas cannot be copyrighted. It's a garbage loophole exploited by a lot of garbage people.
Not to say that legal action hasn't been tried before. In 2015, a comedian named Robert Alexander Kaseberg filed a lawsuit against Conan O'Brien over monologue jokes that bore a striking resemblance to five of Kaseberg's tweets. The two parties eventually agreed to settle the case out of court. Conan adamantly maintains that he and his writing staff did not steal any material from Kaseberg or anyone else for that matter... he simply wanted to "forgo a potentially farcical and expensive jury trial in federal court over five jokes that don't even make sense anymore."
Comedians really don't have any industry watchdogs other than themselves. Musicians have organizations like BMI, ASCAP, and SESAC in their corner to handle their licensing, copyrights, and royalties for their creations. Film and television writers have the WGA. What do comedians have? The honor system... which does us absolutely no good when we're dealing with a talentless hack with no honor whatsoever.
Wanna know how easy it is to make tiny changes to something and present that idea in a suspiciously similar context where the original author has zero legal recourse? All of the famous examples of joke theft in the previous entry are in the exact same order as they're listed in the Wikipedia article for "Joke Theft". In the eyes of the law, rephrasing it in my own words means the original author has no practical case against me in court. But ethically speaking, that was a major dick move that would get my lazy ass fired from any self-respecting publication. My only saving grace is pointing out that I did it on purpose to prove a point. So there! I've become the monster I swore to hate! Are you happy now?
As comedians, it's frustrating to spend so much time and energy crafting and refining a joke, only to see someone else try to pass it off as their own. It's even more infuriating to find out that person has used that joke to become more successful than us. But to also know there's pretty much nothing we can do about it aside from stomping our feet and shouting "BUT THAT WAS MINE!" just makes us want to get stabby.
Another sad aspect of joke theft is that it's happened so often over the years that we've had to create multiple categories to indicate the severity of the offense and the intent. It's not unlike the differences between homicide and manslaughter and the various degrees behind it, only in this case, the victim is a comedian's integrity.
Starting at the benign end of the spectrum, we have the stock jokes: jokes that have been used over and over so many times that they're basically in the public domain. Then there's the low-hanging fruit, which are jokes that are so obvious they practically write themselves. These two categories are more accusations of lazy writing than being a thief, but it still stings to be on the receiving end of that label.
Next, we have parallel thought, a.k.a. the "great minds think alike" defense, where both parties arrived at the same joke independent of one another. This one is usually handled pretty amicably, with both comics calling it a draw and one of them agreeing to stop telling the joke, or at the very least agreeing to not use the joke if they were on the same show together.
Perhaps the most suspicious form of joke theft is a phenomenon known as kleptonesia, where the offender claims to have forgotten where the joke came from, and either figured the idea was fair game, or mistook that lapse in memory for an original thought of their own. In these cases, it's impossible to tell if it should be forgiven as an honest mistake, or if the guy is completely full of crap. It's a huge moral gray area where a lot of dishonest people set up shop, because they know they won't face any repercussions as long as they continue to play dumb.
Finally, we have the granddaddy of them all: plain, old fashioned, blatant plagiarism. You have to have balls as big as church bells to think you can pull this one off, especially in the age of smartphones. We now live in an age where we can call someone out on joke theft in real time. We could recognize a stolen bit, pull up the video of the original joke, play it while they're telling the joke, and livestream their reaction at the same time. And yet some of these hacks would still try to gaslight everyone into believing they wrote those jokes on their own.
No matter how severe the case is, no matter how well you can prove it, the repercussions of joke theft for comedians generally amount to nothing more than a minor setback in their career. Club owners and bookers tend to give comics the benefit of a huge doubt when they're able to bring in a ton of customers. Some places may not want to book them again, but they'll still manage to land gigs somewhere. Other comics could refuse to work with them, but there's always someone else who will. Even if all their gigs dry up, all they gotta do nowadays is get a new headshot with duct tape over their mouths and try their luck on the "silenced by the mob" lecture circuit.
But there is one immutable truth that always seems to undercut the seriousness of joke theft: No one steals the good jokes. Whether they want to admit it or not, bad comedians are well aware of the limits of their talent. If any of their own jokes were good, they wouldn't feel the need to rip off someone else. They only use these stolen jokes to fill the gaps in between their own horribly written material, and they're not about to steal material that they weren't absolutely sure they could pass off as their own. A clever joke in their act would stick out like a sore thumb.
That's why last month, when I read about NYC comic Ted Alexandro's accusation that SNL stole one of his bits for a sketch, my first thought was, "Wait... did the sketch air before or after Weekend Update?" There is a difference. SNL really isn't known for finishing each episode strong. They put their best stuff in the first half, but after Weekend Update the quality of the jokes tend to go downhill faster than a double black diamond slope.
I've been writing for Cracked for just over two months now, and I've already lost count of how many times someone has accused me of recycling material from somewhere on the internet. I'm able to shrug off these accusations because I know I reached my conclusions on my own and besides ... there's only so much I can do to avoid having the same thoughts or opinions as someone else. That's a lesson I learned the hard way during my emo phase back in high school.
Here's the thing: This website has been around for 15 years, and Cracked is merely one hub in the Geek Industrial Complex. Going through the freely available, wholly online Cracked back catalog is a monumental enough task; much less trying to track down every back issue of Wizard magazine. Are we supposed to scour all of Reddit to see if some rando has already called dibs on our latest fan theory? Of course not! We're too busy watching Return of the Jedi at .25 speed again because there has to be something we've overlooked the last fifty times. You know, important work!
As the old saying goes, if you put a thousand monkeys in a room with a thousand typewriters, eventually one of them will type out the complete works of Shakespeare. I'm willing to bet, at least five of those monkeys will also bang out five different think pieces on the same plot hole in Back to the Future. Maybe twenty of them will come up with the same Sumerian fart joke.*
Just look at late night talk shows. Each of those shows have to come up with jokes about the events of that day. If you watch all of the late night monologues from the same night, you're gonna see many, if not all of them crack nearly identical jokes. They're definitely not plagiarizing each other because they don't have the time, energy, or patience to compare notes with their competition over jokes that have the shelf life of organic produce.
Besides, these shows employ a team of writers, many of them pulling double duty as stand-up comics. If a joke is pitched in the writer's room that seems a little suspect, odds are good that someone there would be able to spot it. Plus, each of those writers are painfully aware that if a stolen joke they pitched made it to air, they would be embarrassing someone who is way more famous, has way more influence, and better lawyers than them. Those writers are not gonna squat where they eat.
That's also why I'm torn on the SNL thing. I've known a lot of comics that were writers on that show, and landing that gig is not easy. I don't know why any of those writers would jeopardize that opportunity by cheating. But every season, SNL gets accused of stealing jokes, and there is certainly a lot of compelling evidence to support those claims. Some evidence is stronger than others, but unless someone admits guilt, like Jay Mohr did in his 2004 memoir Gasping For Airtime, those accusations will continue to float around in a fog of plausible deniability behind a wall of NBCUniversal non-disclosure agreements.
What Can We Do To Stop It?
So how can we prevent joke theft? Simple answer: we can't. Whatever hope we once thought we had of maintaining ownership over our own material is now dead. Meme culture has stabbed that hope to death in a dark alley, teabagged the corpse, and the livestream of the crime has a million views and climbing.
What really sucks is, comedians have to maintain a strong social media presence in order to build and maintain a fanbase, but every time we put out any content, it's like leading lambs to the slaughter. Comedians tweet out jokes and post clips of their acts not just to entertain, but also to give that material a time stamp so if anyone else tries to steal that joke, they have proof that they did this joke on this date. The irony is that by doing so, they're also giving the joke thieves all of the content they need.
It also doesn't help that anything we put out can be co-opted by anyone with a damn iPhone. Someone could screenshot our tweets, crop out our names and BOOM, it's a meme! Anyone can download our videos, repost them and go viral without giving us any credit. And it's all fair use, because we can't file a copyright strike on something we can't copyright.
The internet is pretty much the wild west of intellectual property when it comes to comedy, and we have enough desperados to fight off when it comes to stage time. So, if you find something we post to be funny, share the original post if you can. Instead of sharing a screenshot of a tweet with the name cropped out, just do a search for the wording of the tweet and share the original post instead. Don't share stand-up videos unless the comic is credited, and if they're not credited and you know who it is, list their name in the comments. As much as comics hate getting paid in exposure, not getting credit for our work is way worse. Please and thank you in advance.
*Author's note: That third reference to the Sumerian fart joke was written by my wife, Gina Fritschie. Exact wording Copyright 2021. All rights reserved.
Top image: TBS, Flashfeature Photo Agency/Shutterstock