Anybody can identify with the experience.
You come up with a witty turn of phrase, you try it out on a friend, and it’s recieved well. Then, when you and said friend are hanging out with some more chums at a later date, he repeats your bon mot as if it was his own, and it goes over like gangbusters.
What gives? That was your joke, and now he’s getting all the credit. Shouldn’t there be some kind of law against this?
WHEN NO ONE HEARS YOUR JOKE SO SOMEONE ELSE STEALS IT AND EVERYONE LAUGHS pic.twitter.com/2tI5hcbqgE
— elaine (@elainekerryy) October 20, 2015
Well, there isn’t. And comedians feel your pain on an even grander scale when they see other joke artisans—sometimes ones who are even more well-known than them—profiting off of their creations.
It’s nearly impossible to prove joke theft, and copyright law precedent in this area is pretty scant. The real judge, then, is history—well, and their fellow comedians.
“The actual legal aspect of it is the comics police themselves,” says Patrick Reilly, a visiting assistant professor at the University of California-Irvine who has published a research paper on instances of alleged joke theft. “They create their own definition as to what an intellectual property violation is. The people in the community, in a loose sense, define it consensually and police it and punish people for violating it amongst themselves. It’s just within the ranks of comedians to decide whether something is joke stealing.”
Who’s been behind some of the most high-profile instances of alleged joke theft? And what sort of fallout—if any—faced the accused?
The Accused: Milton Berle
The Evidence: Well, his own words, for starters. This is a famous Berle quote about an especially funny bit from a fellow comedian: “I laughed so hard I nearly dropped my pencil.” As in, the pencil Berle was using to write down the joke for use at a later date. Berle’s reputation as a joke, let’s say, repurposer was so pervasive that it earned him the nickname “The Thief of Bad Gags.”
His contemporaries seemed to take it all good-naturedly. Jack Benny, another noted joke thief of the era, joked that it wasn’t stealing when it came to Berle’s jokes, just “repossessing.”
Okay, one more story from Melvin Helitzer’s 1987 book Comedy Writing Secrets: “One day Milton Berle and Henny Youngman were listening to Joey Bishop tell a particularly funny gag. ‘Gee, I wish I said that,’ Berle whispered. ‘Don’t worry, Milton,’ [said Henny,] ‘you will.’”
The Fallout: None, really. Berle started out as a vaudeville star in the 1920s and maintained his popularity during the radio and early television days before seeing his starshine wane a bit in the 1950s. But he still got fairly steady work until not long before he passed away in 2002. His final role was on an episode of Kenan & Kel in 2000, when he was 91 years old.
— Tim Fargo ❤ (@tim_fargo) October 12, 2018
Reilly says that has to do, in large part, with the fact that joke stealing was one of the tools of the trade in vaudeville days. Everybody was going around telling everybody else’s jokes. It was expected. The notion of “joke stealing” is a fairly new phenomenon.
“Whereas jokes in the former era tended to plow through established and generic themes (for instance, mother-in-law jokes or ethnic jokes), humor in the latter era tends to be more personal, observational, and point-of-view driven,” wrote law professors Dotan Oliar and Christopher Sprigman for the Virginia Law Review in 2008.
The Accused: Robin Williams
The Evidence: In the 2017 book The Improv: An Oral History of the Comedy Club that Revolutionized Stand-Up, authors Budd Friedman and Tripp Whetsell quote comics Richard Lewis and Robert Wuhl attesting to Williams’ penchant for lifting material. “Some comics hated him for it,” Lewis said in the book. “But I wasn’t one of them.”
The late Williams’ stand-up style—fast, frenetic, and free-wheeling—gave way to a sort of free-association structure in which he sometimes incorporated bits and pieces from other people’s acts into his own.
Williams, like Berle, didn’t do much to disabuse people of that notion. In a 1992 interview, Williams said he would even pay a comedian what he thought was a fair wage for a joke if the comedian confronted him about lifting it. Reilly says that opens up a whole new can of worms about market rates for material and the idea of using someone’s writing without consent, then remunerating them afterward.
Oliar and Sprigman interviewed some of these comedians for the aforementioned 2008 Virginia Law Review piece; these comedians stated that while they found Williams’ “steal-and-pay” methods distasteful, they still cashed his checks.
The Fallout: “Steal-and-pay” obviously didn’t hurt Williams’ career very much. He won four Grammys, two Emmys, and seven Golden Globes over the course of his days as an actor and comedian, and he was one of the most popular comedic voices in the world for a good chunk of his career.
The antipathy—and, sometimes, threats of physical harm—he got from other comedians made him swear off performing in clubs for a long period of time, though.
“I heard some lines once in a while and I used some lines on talk shows accidentally,” Williams said in the 1992 interview. “And I’m tired of taking the rap for it. I avoid anything to do with clubs. I don’t want to go back and get that rap again from anybody. I got tired of (other comics) giving me looks, like, what are you doing here?”
The Accused: Denis Leary
The Evidence: Fellow comedian Bill Hicks and Leary used to be tight. That is, until Leary’s breakthrough 1993 album No Cure for Cancer came out. That left Hicks saying things like this: “I have a scoop for you. I stole his act. I camouflaged it with punchlines, and to really throw people off, I did it before he did.”
Several other comedians backed up Hicks’ version of events. Boston comedian Tim McIntire said Leary “not only lifted Bill’s persona and attitude, but his No Cure for Cancer book/album has some of Bill’s material verbatim in them. An inside joke among comics is that the only reason Leary’s a star instead of Bill is because there’s no cure for cancer.” Hicks, you see, passed away from pancreatic cancer in 1994.
Leary, for his part, addressed the accusations in a 2006 interview, saying “That’s a great story that people like to latch onto. Very quickly we got New York club owners saying, ‘You guys are too alike,’ while I was saying, ‘What are they talking about?’ It’s the same approach to the subject maybe, but it’s not the same act. But as I’ve said many times, a fable is sometimes better than the truth.”
Bill Hicks died in 1994 yet Denis Leary, who stole his act and put an Instagram filter on it, just gets richer and more leathery every year.
— Matt Wallace (@MattFnWallace) October 23, 2016
The Fallout: Leary’s star rose precipitously after No Cure for Cancer, and he made the crossover to acting in movies and TV shows. He was the star of the FX series Rescue Me from 2004 to 2011 and still gets regular work.
More accusations of plagiarism have followed him, though, with comedian Louis C.K. accusing Leary of stealing one of his bits for the hit song (with a bit of a risqué title) from No Cure for Cancer. Leary has also disputed that, saying he co-wrote the song with actor Chris Phillips. Leary made light of a controversial chapter in his new book at the time, saying “Louis C.K. wrote that chapter. And if there’s anything else in the book you don’t like, Bill Hicks wrote that.”
The Accused: Carlos Mencia
The Evidence: Bill Cosby had a riff on his wildly popular 1983 album, Himself, about a father who teaches his son how to be a star football player growing up and then, once that son does his first camera interview, all he can think to say is, “Hi, mom!” Mencia had a bit on his 2006 album, No Strings Attached, in which a father teaches his son how to be a star football player growing up and then, once that son wins the Super Bowl, he looks in the camera and says, “I love you, mom!” Pretty similar, right?
George Lopez said Mencia took 13 minutes of his act and used it in his HBO special. On the Howard Stern Show in 2005, Lopez said he physically attacked Mencia after a show at The Laugh Factory for his transgressions.
Comedian Joe Rogan also confronted Mencia on stage at the Comedy Store about his reputation as a joke stealer in 2007. What ensued was a loud, angry, profane argument between the two that Rogan cut into a video that has been watched more than four million times on YouTube. While they may not have agreed with the public nature of Rogan’s actions, most comedians came down mostly on Rogan’s side.
IN COMEDY NEWS: If you play Carlos Mencia's album backwards, @joerogan's set from last week comes out.
— National Lampoon (@nationallampoon) March 6, 2012
Oliar and Sprigman quote Pauly Shore as saying, “Joe is totally right as far as people ripping material: You can’t do that. But then I also think that people should kind of like keep stuff to themselves. That’s cool if that’s how he feels. I respect someone who wants to keep it real like that.”
The Fallout: Mencia hasn’t exactly flourished since all the joke-stealing accusations came to a head, with his Comedy Central show Mind of Mencia getting canceled in 2008 and only one comedy album coming out since, in 2011.
That year, Mencia told the New York Times that he started therapy during that period of joke-stealing conflict “to begin to take responsibility for my part in whatever the dance is in life, onstage as a performer, as a human being.”
The Accused: Dane Cook
The Evidence: Multiple comedians accused Cook of stealing their bits in a 2007 Radar article called “Take the Funny and Run,” including Rogan and an unnamed “veteran comic” who asked that Cook stop performing one of his “very physical routines.” That article also gave rise to the beef, such as it was, between Cook and Louis C.K., as it pointed out three bits from Cook’s 2005 album Retaliation that bore pretty close resemblance to C.K.’s 2001 album Live in Houston.
Reilly says you’d have to engage in some “mental gymnastics” in order to take these instances and definitively tar Cook as a joke thief, but he also says it’s the sort of leap of faith fans and other comics are more willing to make when the supposed joke stealer is someone who is not very respected in the community.
“For a while during his peak, when he was one of the biggest comics in the world, people saw that there were certain aspects of him where they didn’t see him as being a ‘real comic,’” Reilly says. “The community saw him as an outsider and an intruder. Aspects of that led him to be painted with the scarlet letter of being a joke thief, even though if you look at the instances, it’s very borderline.”
Todd Jackson, a comedy critic and the founder and editor of the Dead Frog comedy blog, says he was a much bigger fan of C.K. than Cook at the time, and even he considered the plagiarism accusations as a bit off base. He noted that one of the supposedly stolen C.K. bits was also fairly similar to an old Steve Martin riff.
“Ultimately, what you want to be doing is something so original to your own life experience, your own way of seeing the world, that it would be very hard to call you a thief,” Jackson says. “If you do something that is so uniquely yours, it’s going to be hard for somebody to take it from you. Jokes are so fleeting. They’re the building blocks of an act, but they’re not the act itself. That’s the person, the persona, the character and who you are. That can’t be taken away from you.”
The Fallout: Cook went on being one of the hottest acts in comedy—and one pretty widely reviled by the “serious” stand-up community—for the next three or four years. He’s even branched out into some dramatic work. He addressed the plagiarism accusations head-on during a 2011 episode of C.K.’s FX show Louie.
“I don’t think he stole from me knowingly, which is what I said in the episode,” C.K. said in a 2012 LaughSpin interview. “I think he sort of got some of my jokes in his head and got sloppy.”
The Accused: Amy Schumer
The Evidence: As it often happens, right around the time Schumer was getting to the pinnacle of her popularity, lesser-known comedians starting noticing pieces of their acts in her material. In January 2016, as Schumer’s movie Trainwreck was in the midst of a successful run and her show Inside Amy Schumer was gearing up for its fourth season, a trio of female comedians—Kathleen Madigan, Wendy Liebman, and Tammy Pescatelli—took to social media to point out similarities between their material and Schumer’s.
Simultaneously, people started pointing out Schumer bits that seemed an awful lot like those deployed by John Mulaney and the late Patrice O’Neal. Reilly says Schumer was probably dealing with much the same sort of imposter syndrome that Cook did—a comedian becoming wildly popular all of a sudden, seemingly without paying their dues.
The Fallout: Schumer denied ever stealing jokes. And what made her denial different from others, Reilly says, is that comedy heavyweights came to her defense. Jim Norton and Marc Maron both entered the fray on her side. Even Mulaney—who she is supposed to have lifted from, remember?—tweeted “She would never. Does not need to. Doesn’t have the time to. And just plain wouldn’t think to. End of discussion.”
She would never. Does not need to. Doesn't have the time to. And just plain wouldn't think to. End of discussion. https://t.co/Sca5i3mnJ9
— John Mulaney (@mulaney) January 21, 2016
Von Decarlo Brown, O’Neal’s longtime partner before he passed away, also tweeted a long message that read, in part, “The jokes in question that Amy Schumer is being accused of stealing were not originated with Patrice. Patrice first learned of these jokes via college campuses and was fascinated by them because he thought that they were childish & fun. He himself did not stake claim to them, and whenever he performed them, he considered them throwaways & experimental.”
Jackson and Reilly both said the “parallel thinking” some comics use as a joke-stealing deflection, in which comics working in the same scene will logically come up with the same sorts of jokes, is a very real thing. “There are people who come along and find these answers at the same time, because it’s in the culture,” Jackson says.
“There will be waves. All of a sudden, everybody will be joking about one topic. For some reason, it’s pinged off of enough people’s heads that they’re talking about it.”
Reilly says that’s especially true when it comes to current events or relatively new phenomena. When a new app comes out, for instance, a bunch of people paid to be funny for a living will probably come up with a lot of similar takes about it.
“When people haven’t quite hashed out the jokes yet, you’ll have people arrive at the same set of approaches and punchlines,” Reilly says. “Then, over time, people will polish, get some experience with it, find the things that are novel, and then you’ll get something that’s a lot more finished. Parallel thinking is something that’s understood as being an inevitability.”
Policing the Unpoliceable
It’s nearly impossible to definitively prove joke stealing. According to Oliar and Sprigman’s article, they found that while some comedians have gone through the process of copywriting individual bits, most feel it’s not worth the hassle. It’s too expensive, and there is very little chance of coming to a satisfactory conclusion.
How would you prove who was the first one to come with the old yarn about making the whole plane out of the material they use on the black box, anyway?
This is why writer Alex Kaseberg taking Conan O’Brien to trial over three supposedly pilfered jokes is such an odd case. A federal judge ruled the case could go forward in May 2017, but since then, O’Brien’s lawyers have raised an issue over whether Kaseberg’s lawyer committed fraud to win copyright approval for Kaseberg’s material.
It’s pretty confusing stuff. The main takeaway is it’s nearly impossible for comedians to claim jokes as uniquely theirs.
“More often than not, it’s not an obvious theft, verbatim theft amongst people who are stand-up comics,” Reilly says. “There are instances of road-dog comics that go around the country, tour all the time, and go to one town, see a young comic, take their jokes and go to the next town and perform them.
“But even in that sense, there is some sort of strategic rewriting. In LA and New York, it’s not as prevalent because people are around all the time, they perform, and there’s this sense of a strong, entrenched community that exists that is very much there. It would be almost suicidal, in a way, to do verbatim or very strong theft in a community that entrenched.”
The real danger of joke stealing, Jackson says, is when comedians in other countries just perform American acts in foreign languages. Last fall, he learned of the case of French comic Tomer Sisley.
There’s pretty compelling evidence that Sisley, who is popular in France and has appeared in the American film We’re the Millers, and other French comedians regularly perform material from a number of American comics, albeit in their native language.
“It means American comedy is more exportable to other places. There is a broader reach for American standup,” Jackson says. “There is money being left on the table for American comics, to some degree, and our American voices are neutering what could be great, fantastic, unique comedy scenes in other countries because of joke stealing by these comedians.”