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Have you heard the one about the smart fridge? 

Comic Darius Davies has a bit about buying a smart refrigerator that dates back to 2015. The premise is that his new Internet-connected appliance can message him when supplies are low -- but who wants that? It’s like having a nagging girlfriend.  Davies asks his refrigerator: Why can’t you be more like the kettle?

Hot Water Comedy Club

Doing stand-up in front of a brick wall.  We won't call it joke theft but it isn't exactly original.

Then last year, Davies saw comedian Kae Kurd perform a strangely familiar bit on the UK’s Jonathan Ross’ Comedy Club. 

The routine was really similar, according to Davies. Both discuss the ice-dispenser as a status symbol, both compare the texting fridge to a nagging partner. And maybe most damning, both use the Why can’t you be more like the kettle? punchline.

Because the two comics have performed on the same bill more than once, Davies is “absolutely certain (Kurd) was heavily inspired by my routine.”  ("Heavily inspired" = I just got jacked.)

Davies confronted Kurd, and Kurd denied that he’d lifted the bit.  So Davies took the offensive, posting online videos of the routines side-by-side to prove that he was the originator of the jokes.  

This isn’t the first time comics have struck back using this method -- here’s an example of an Amy Schumer joke compared to an earlier version by Wendy Liebman.  (This example, in particular, seems like jokes that could have been written independently, but you get the idea.)

Historically, these spats usually ended with finger pointing and denials that remained mostly confined to the comedy community.

That's over with now.

Kae Kurd is striking back. You’re calling me a joke thief? In September, he filed a lawsuit in a British court accusing Davies of libel.  Some are calling it a potential landmark case about who owns the right to a comedy routine. Suddenly, Davies finds himself in a tough spot. Defending himself will be expensive. And how do you prove that your material was stolen instead of someone else simply having a similar idea?

We're in a different era of adjudicating joke thievery, and to help understand how we've arrived at this place, let's have a look at how it was handled in the past.

W.C. Fields would beat the s*** out of them

Joke theft is about as old as, well, jokes. 

Vaudeville comedians used to call joke swipers “choosers,” according to Kliph Nesteroff’s The Comedians: Drunks, Thieves, Scoundrels and the History of American Comedy

The problem was pretty widespread. “If a comedian was original and wrote his own material,” says comic Fred Allen, “he soon found that other comedians were stealing parts of his act.” 

The National Vaudeville Artists developed some low-tech, 1930's safeguards against joke theft -- namely, comedians could mail a sealed copy of their material to the NVA office. Someone stole your joke? The envelope was opened and if the theft was proven, the comedy crook would lose work, after they were presumably sprayed in the face with seltzer water.

Paramount Studios

Never work with kids, dogs, or joke thieves.

Sometimes, the consequences were more physical. “Vaudeville, as far as comedy’s concerned, was like gangsta hip-hop,” Patton Oswalt told Time. “W.C. Fields would wait outside the stage doors for guys who would do his act and beat the living s**t out of them.”  

But comedians still lifted material. Abbott and Costello are famous for “Who’s on First,”  but bits of that routine had floated around the burlesque scene for years, according to Ken Jennings’ Planet Funny. Who owns a routine if it’s stitched together from a dozen sources?

Radio and TV brought more joke swiping. Mr. Television, Milton Berle, was so famous for borrowing material that he was known as the Thief of Bad Gags. Berle had no shame, so brazen that he often joked about stealing material in his act.

NBC

The Ed Sullivan Show: Your one-stop shop for joke stealing.

At least in some comedy circles, stand-ups thought it was OK to take a crazy-quilt approach to plagiarism -- no problem if you just took a little here and another little something there. 

“I was doing everybody’s material,” says 1950s comic Norm Crosby. “I would watch Ed Sullivan on a Sunday and I would take a joke or a gag or a line from… Buddy Hackett, Jan Murray, and Red Buttons. I took just a thought, an idea, a gag, a line, just something—not stealing really. Because when you have no writers, no knowledge of writers, and no material of your own, you know, it was okay to do that.”

Not stealing. Really, Norm?

Ed Sullivan Show

Just another in the long tradition of comedians punching themselves in the face.

Some say it depends on how you do it. Comedian David Steinberg describes a more benign version.  “There’s no good comedian that hasn’t stolen ideas from someone,” he says. “And you don’t really ’steal’ material. You do your own version of it.” He uses the example of Shelley Berman doing a routine as if he’s talking on the phone to someone unseen, a device also used over the years by Nichols and May, Bob Newhart, Lily Tomlin, and Ellen Degeneres.  

Well, yeah, but let’s be clear. That form of ‘theft’ -- taking a general format and putting a personal stamp on it -- isn’t quite the same thing as lifting jokes in their entirety, Norm Crosby-style.

A “tendency to absorb material”

The list of more contemporary comics accused of (or in many cases, admitting to) stealing jokes could take up an entire wing in the Stand-Up Comedy Hall of Fame:  Woody Allen, Richard (“I made a lot of money as Bill Cosby”) Pryor, the afore-mentioned Amy Schumer, Trevor Noah, George Carlin, Dane Cook, and the Wayans brothers, to name a few

HBO

At least no one would ever accuse Williams of stealing that shirt.

Robin Williams, a comedian known for his lightning-quick ability to generate jokes on the fly, was detested by many comics for his inclination to regurgitate their punchlines as part of his ‘improv’ process. 

“Robin was very nice and talented,” says Robert Klein. “But he had a tendency to absorb a lot of people’s material—and then apologize.”

Tom Dreesen confronted Williams after he heard Mork using one of Dreesen’s jokes in Mork and Mindy’s show-closing reports to Orson. Williams expressed what seemed like genuine remorse (Robin was almost as good at saying “sorry!” as he was at borrowing jokes) and Dreesen forgave him, believing that Robin soaked up influences like a sponge and didn’t always realize he was spitting out other people’s punchlines. 

Not all comics were as cool about it as Dreesen, according to William Knoedelseder’s I’m Dying Up Here: Heartbreak and High Times in Stand-Up Comedy.  If you were an up-and-coming comic and Williams “accidentally” riffed your best joke on Carson?  Then you can never use it on Carson! A handful of era comics like Bill  Kirchenbauer and Gallagher refused to perform if Williams was in the room. Others, if they heard Williams use their material on TV, were “waiting for him” back at the club.

W.C. Fields-style violence was one possible consequence of stealing jokes. Losing your job was another.  

Saturday Night Live’s Jay Mohr admitted to stealing a New York comic’s routine about an Irish bartender and turning it into one of his most successful sketches. SNL had to pay off the comic and Mohr wasn’t asked back the following season.  “What I did was inexcusable,” confesses Mohr in his book Gasping for Airtime, “and no apology in the world could ever make up for it.”  Possibly worse than losing his job at SNL? The thief reputation followed Mohr around in comedy clubs for years. 

Stealing jokes in the Internet age

Comedy in the era of podcasts, Instagram, and YouTube have made joke theft more complex than ever. 

Carlos Mencia YouTube

Mencia wearing a shirt that says “original”?  Oh, the irony.

WTF with Marc Maron took off when he devoted two episodes to charges that Carlos Mencia was a joke thief.  Fellow podcaster Joe Rogan did Maron one better, actually confronting “Carlos Manstealia” onstage about swiping gags. The challenge had special power because it was caught on video and shared widely.

Mencia is touring again but his career has never been the same. 

Modern-day joke theft isn’t limited to stand-up.  Instagram account @F***Jerry is infamous for generating major ad dollars, landing book deals, and launching its own wine brand, simply by 'sharing' other accounts’ jokes, memes, and goofy pictures.  The account "curates” all of the funniest material on the web – FJerry-speak for ripping off other people's jokes with no credit or compensation.

Instagram

No, seriously, eff Jerry.

An unfollow campaign, #ffjerry, was supported by comedians like Amy Schumer and John Mulaney, but F***Jerry seems to have calmed its detractors with its “sorry, we didn’t know” defense. The account now conspicuously claims: All content is owned or licensed alongside plugs for its own brands of tequila and board games. 

Did the accusations of joke theft hurt F***Jerry?  Apparently not -- the account now has 16 million followers, up from 14 million when the unfollow campaign began in 2019.  

Lawsuits and laughs

@F***Jerry is a great example of how comedy thievery is easier than ever, sometimes as simple as hitting Copy and Paste.  

But it’s also easier than ever to call someone out. Someone who had beef with Robin Williams at the Comedy Store didn’t have a great way to let the world know.  But if you had an issue with Carlos Mencia? YouTube and podcasts were just two of the ways to derail a comedy career.  

Which brings us back to Darius Davies and Kae Kurd. 

“I’m lucky I actually have some footage of me performing the jokes,” says Davies, another advantage of technology. “So many comedians don't in this situation.”

But is footage enough? Will the courts look at Kurd’s smart refrigerator bit as outright theft?  Or, like Steinberg suggests, was this simply an example of two comedians riffing on a similar subject in a way that only appears to have been pirated? Could Kurd be another Robin Williams -- someone who simply ‘absorbed’ material he once heard and then unconsciously worked it into his own routine?

It’s going to take some serious money to find out. Joke thievery is now in the courts, where we know who always wins: the lawyers.

Top Image: Carlos Mencia YouTube

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