An English comedian recognized breaking intentionally a member of the audience’s mobile phone and added that he didn’t regret it because people were “stealing” comedians’ jokes and they should be protected as films. It is difficult to even start the analysis when somebody claims a right to commit a crime, criminal damage, to protect a right that, in principle, does not have. The strict, basic legal issue, is that copyright protects “(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films, broadcasts or cable programmes, and (c) the typographical arrangement of published editions” (Part 1, Chapter 1, S 1 of Copyright, Designs and Patents Act 1988 (c. 48)), but “does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise” (ibid, s3.2) While a performance can attract a form of copyright for qualified individuals and qualified acts, this performance needs to be one of a work already subject to copyright protection. So, what this particular comedian needs to do instead of smashing the mobile phone of a member of the audience who has said that it was texting and not filming him, is to use the law instead of easily bashing it…just write down the jokes, which automatically will give you copyright protection in any of the members of the Berne Convention and or WTO-TRIPS, and then, when performing in England, the performance will be protected too…
With regard to the claim that people steal jokes, the claim is not new and it should be taken seriously, so if it can be shown that a particular comedian has been the first to write down or fix in any other tangible medium of expression a particular joke that comedian should get copyright for it. However, comedians need to be ready to pay royalties if other people, including people from other countries, can show that they obtained a copyright before them…and I have the feeling that it will be very difficult for a comedian to show that a particular joke has been created by him/her and that it does not constitute either a copy or a derivation of an older joke. In the same way that Borges in his This Craft of Verse claimed that all metaphors could be reduced to a very short list of situations and that most of them were variations of those few ones, it can be argued that jokes follow the same pattern. If that is the case, it is disputable whether changing names and nationalities, for example, in a joke would give the necessary degree of originality to be afforded copyright protection. What probably comedians need to realize is that people pays to see them because they are funny not because their jokes are terribly original (and in most case probably aren’t) and they also take some time out of their “busy” lives to think before they act, because if they really push the issue that their “ideas” should be protected (without knowing it they might be asking for that) they may be asking to extend the law of copyright in a direction that would leave them out of work…if their “ideas” get protection they will need to prove that they are theirs in the first place and that they have not been build upon other people’s ideas, which is one of the pillars of comedy (also known as parody).
With regard to the claim that people steal jokes, the claim is not new and it should be taken seriously, so if it can be shown that a particular comedian has been the first to write down or fix in any other tangible medium of expression a particular joke that comedian should get copyright for it. However, comedians need to be ready to pay royalties if other people, including people from other countries, can show that they obtained a copyright before them…and I have the feeling that it will be very difficult for a comedian to show that a particular joke has been created by him/her and that it does not constitute either a copy or a derivation of an older joke. In the same way that Borges in his This Craft of Verse claimed that all metaphors could be reduced to a very short list of situations and that most of them were variations of those few ones, it can be argued that jokes follow the same pattern. If that is the case, it is disputable whether changing names and nationalities, for example, in a joke would give the necessary degree of originality to be afforded copyright protection. What probably comedians need to realize is that people pays to see them because they are funny not because their jokes are terribly original (and in most case probably aren’t) and they also take some time out of their “busy” lives to think before they act, because if they really push the issue that their “ideas” should be protected (without knowing it they might be asking for that) they may be asking to extend the law of copyright in a direction that would leave them out of work…if their “ideas” get protection they will need to prove that they are theirs in the first place and that they have not been build upon other people’s ideas, which is one of the pillars of comedy (also known as parody).
In sum, no excuse to commit a crime (I don’t understand how the chairman of the bench had “some sympathy with the issue”) and be careful what you ask for…you may get it!
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