Creative Lawyers for Creative Business

Professional comedians could soon lose their sense of humour if they cannot protect their jokes from theft.

High profile comedians have recently been involved in disputes and controversies when they found their sketches and routines were “borrowed” or plagiarised by their rivals. Jokes are usually published or revealed though public performances, audio-visual medias, books and publications or on-line joke web sites.

The more vulnerable media are public performances and virtual comedy channels. These sites allow comics to upload their work to be viewed and discussed by other users of the site. This free distribution creates more on-line joke content for the users, more publicity for the entertainers, but also more opportunities for the joke thieves. Stand up performances tend to make people laugh by weaving and adapting a story around the audience rather than just telling joke after joke. Such particular adaptations should also be protected.

Making people laugh is a tough job and comedians have to constantly re-invent themselves and the ideas they rely on. In legal terms, such ideas and concept have to be original to be protected by copyright.

Copyright gives the creator of a wide range of material, such as literature, art music, sound recordings, film and broadcast rights to control the use of their original material by making copies, performing in public, broadcasting and using on line. Copyright also gives moral rights to be identified as the creator of the work and to object to the work being distorted.

A work can only be original if it is the result of independent creative effort with intellectual input and/or investment of resources. It will not be original if it has been copied from something that already exists, unless the person who is accused of copying can show that he or she has arrived to the same result independently.

Copyright in a written work is infringed when a defendant reproduces – i.e. copies- a substantial part of the work without the owner’s consent, unless what is done falls within the scope of exceptions that permit certain minor uses of material.

The beauty of copyright protection is that is it free and automatic as soon as there is a record in any form of the material that has been created, so there is no official registration form or cost. But it is also free and automatic for other to take.

The first rule against "intellectual property theft" is that every comedian should insert on written scripts of everything they perform the copyright notice © followed by their name and the date of creation. Other steps can be taken to prove that their material is in fact theirs. For example, a copy could be deposited with a bank or solicitor. Alternatively, an artist could send himself or herself a copy by special delivery post, which gives a clear date stamp on the envelope, leaving the envelope unopened on its return. More sophisticated systems exist to systematically log and date every new creation or piece of writing on an intellectual property database.

These processes do not necessarily prove that a work is original or created by the writer but it may be very useful to be able to show that the work was in the artist’s possession at a particular date. It means that when someone else claims that the comedian has copied something of theirs that was only created at a later date or should the comedian’s own original material be copied; they can take the offender to court because they can prove that they had it copyrighted first.

Copyright law raises complex issues and it is important that all the rights of the copyright owners converging into any media are not infringed or used without the respective owners’ authorisation. In order to ensure that the ownership of such rights is clear, it is vital that all parties enter into clear agreements at the time their works are published.

Asserting copyright on its script allow the comedian a strong position to put everyone on notice and tell infringers to stop using the joke or face prosecution under the Copyright, Designs and Patents Act.

Briffa Opinion
No one who claims to be a professional artist wishes to have a reputation of being a “thief of ideas”. Copyright infringers will back off when rights are enforced efficiently. Rightful copyright owners must assert their rights correctly and have the means of guarding against plagiarism.

At Briffa we can advise and guide you on the complex issues of copyright, and other relevant intellectual property protection, such as what to look for in your contracts, drafting strong licence agreements and how to pitch ideas and concepts by minimizing the risk of them being stolen, to encourage trusted and valued relationships in the entertainment industry.

Registration with our designprotect service enables you to lodge each of your creative pieces of writing with us in exchange for dated documentary evidence of their receipt and a cost effective legal group insurance scheme to cover you against all infringement actions brought by you or against you in the UK in relation to all your original creations recorded under the scheme. By sending us your scripts as they are created, designprotect can assist you in proving evidence of your creation of a particular work and also of the work history. The scheme covers all materials you have lodged with Briffa and which you can submit to us by post, in hard copy, disc or e-mail. Briffa automatically dates all materials lodged and we hold this as an independent record of your work.

Sophie Lachowsky
For more details please contact sophie@briffa.com