Rob Fee authored a piece here on Playboy.com about why stealing jokes on social media is a big deal. As I read the article, I found myself, as a comedian, nodding a lot, agreeing with most of his points and recounting the times I’ve seen jokes plagiarized on social media. I know you might be thinking, “Why is this chick taking stolen jokes so seriously? If she’s a comedian, shouldn’t she know not to take everything so seriously? She’s just being a classic woman and overreacting.”
This may indeed seem like “no big deal” to your average person. However, as a comedy writer, jokes are more than just something to make people laugh. Writing jokes is my job. And as Rob mentioned, I’m familiar with the teenagers and their armies of 11 followers who copy and paste jokes. I’m not going to waste my time fretting about that. What I will make noise about, and what prompted me to write this article, is the fact that, in addition to the social media heavies Rob called out for stealing, businesses do the same thing.
Rob and me and the thousands of people who have shared Rob’s article aren’t the only ones who have noticed all of this usage without consent. This week Twitter announced it’s cracking down on joke thieves. Good for you, Twitter. Welcome to the struggle. It’s maddening.
My first brush with joke plagiarism came when a brand I follow Tweeted and Instagrammed a joke that looked familiar. It felt familiar because it was my joke.
A UPS truck is like the adult version of an ice cream truck.— Eden NASTY Dranger (@Eden_Eats) December 20, 2014
Um, Where Have We Seen This Before?
It was an old joke (maybe a few months old), but it was still mine. All I had to do was a simple Google search and—voila—my Twitter handle pops up as the first search result. It literally took me three seconds to locate the original source. As opposed to a naive teenager, this irked me for a number of reasons.
This brand is popular, and it seems to be doing fairly well. The company has one million registered customers. It has over 29,000 followers on Twitter and over 391,000 followers on Instagram (way more than me on both platforms).
And yet it’s using my creativity to enhance its brand. It puts out an image to young girls that says, “Hey, this company is so quirky and relatable – love them and buy their stuff.”
I know that clothing companies do deals with fashion bloggers all the time where they give them free clothes and pay them to post and credit their store on Instagram. This is how some fashion blogs make millions. Bloggers and Vine celebrities are often paid thousands of dollars for one measly mention. But NONE of that money goes to an author whose content winds up–without their permission–in a company’s social media post.
This company actually sent me an email saying it apologized and that it saw the joke on Pinterest (because evidently Pinterest is also fair game). To try to calm me down, it gave me a $50 gift certificate. (Mind you, most of its products are over $50, so I’d have to spend money to get anything I actually wanted.) The email said: “I do understand your situation regarding the quote, and I am glad we are able to smooth things over.” They promised they wouldn’t do it again, so I sort of shrugged it off.
Then the company tweeted out another joke that looked familiar. I knew it wasn’t mine, but I wasn’t sure who’s exactly it was. Again, it took me a simple Google search to find the original source and BAM!
HUGE TURN ON: When people smell good and are hot. Sometimes spicy. Wrapped in tinfoil. Are actually burritos.— Kevin Farzad (@KevinFarzad) April 9, 2014
Hey, This Looks Familiar
As Rob mentioned in his piece, come on, sharing something funny and giving credit is as easy as hitting the retweet button.
After a bare minimum of research, I uncovered these:
The struggle is real. 👗👚👡👖👙💃🏽 pic.twitter.com/f2hiqYvWYU— Tobi (@ShopTobi) May 8, 2015
A woman has two problems: 1. Nothing to wear. 2. No room for all the clothes.— spadoll (@spadoll) August 26, 2014
Ever noticed that Ariana Grande sounds like it should be a font in Microsoft? Just us? Okay…— boohooMAN (@boohooMAN) May 21, 2015
Behind every good selfie is approximately 47 nearly identical pictures that didn’t make the cut.— WineEsquire (@WineEsquire) February 18, 2014
the secret secret menu ☕️ pic.twitter.com/SvzoK0sGJb— REVOLVE (@REVOLVE) May 18, 2015
I’ll have a skinny vodka latte to go please….— Carrie Bradshaw (@Carrie_Bradsh4w) March 29, 2014
Below are a few examples of tweets that were posted by companies in which the original writers received no public credit.
My “look at your text then jump back to the gram” game to strong.— Bayley Boston♏️ (@welovebaybay) January 18, 2015
BREAKFAST: 250 CALORIES— Sam Kalidi (@samkalidi) February 26, 2015
LUNCH: 375 CALORIES
SNACK: 150 CALORIES
DINNER: 70,850 CALORIES
*closes fridge door and hears stuff fall in it*— BRANDON BARAY. (@BRANDONBARAY) November 6, 2014
well… sounds like a problem for the next person
So what’s my proposed solution? Brands and companies need to start paying the comedy writers whose material they’re using to shape the reputation of their brands. A company employing someone to write witty jokes isn’t a radically new concept. Lots of companies (and even famous personalities) hire writers to write jokes for them. And guess what, the companies actually have huge social media cred and success. Take brands like Taco Bell and Old Spice.
If you’re a burrito, I’m a burrito.— Taco Bell (@tacobell) May 16, 2015
The object of the game is to go as long as possible without thinking of the phrase “on fleek.” Our future is in your hands.— Old Spice (@OldSpice) May 14, 2015
These are funny and original Tweets. Plus, here’s a radical concept: they actually RELATE in some way to the product/brand (as opposed to the stolen tweet about burritos that was tweeted from a clothing store site). Another cool thing these companies do–as opposed to companies that steal–is that they actually use that whole retweet function. I know. What a novel idea.
I talked to a friend who is studying copyright law. He’s not a big-fancy licensed lawyer, but I ran the facts he gave me by an actual big-fancy lawyer who said my friend knew his stuff. Turns out, jokes CAN be copyrightable. My smarty-pants law student friend said that Title 17 of the United States Code, Section 102 (17 U.S.C. § 102) provides the requirements for copyright-ability. Without getting too complicated, basically something needs to be original and fixed. In terms of originality, a paradigmatic case called Feist said that a work must be “independently created by the author” and “must contain some modicum of creativity.”
That last part basically means that the work cannot simply be a statement of fact (e.g., “Andre the Giant was 7’4””). In terms of being “fixed,” think of it like being physically recorded somewhere (e.g., words being written down, audio being recorded, etc.). It can be more complicated than that, but when we’re talking about jokes, we’re talking about either audio recordings or writing, both of which can easily be fixed.
With that in mind, a joke can be copyrighted. For example, my joke: “A UPS truck is like the adult version of an ice cream truck” might be copyrightable if I could show that it was original (required some creativity on my part and I authored it) and that I “fixed” it somewhere (posting it on Twitter or Facebook would count). According to my lawyer friend, that doesn’t mean my joke is copyrightable, it’s just that my joke can be copyrighted.
My friend explained to me that it’s important to mention that there are some people who argue that jokes enjoy weak copyright protection. In this regard, he gave me an example of two arguments that are best represented by a 1995 case out of a federal court in Georgia (Foxworthy v. Custom Tees, Inc., 879 F. Supp. 1200, 1218-19 N.D. Ga. 1995), in favor of jokes being copyrightable, and attorney Sara Cranson’s article "The Limited Protections of Intellectual Property Law for the Variety Arts: Protecting Zacchini, Houdini, and Cirque Du Soleil”, arguing that jokes have weak copyright-ability.
But both the case and the article’s arguments can be a little problematic, because they also (and arguably mainly) discuss the trademark issues at hand. Jeff Foxworthy trademarked his jokes, and for better or worse he was famous for his “you might be a redneck” line, and that really helped him win. But taking trademark out of it, it’s not clear what kind of joke deserves copyright protection. Here’s a quote from the judge’s opinion in Foxworthy:
“Plaintiff [Foxworthy] clearly established at the hearing that all of the jokes copied by the defendants [Custom Tees] were not only his own ideas, but his own expression. His expression clearly evidenced a “modicum of intellectual labor,” Feist, 499 U.S. at 346, 111 S.Ct. at 1288, and defendants clearly copied that expression verbatim. Accordingly, plaintiff has shown a likelihood of success on the merits of his copyright claim.”
Most recently, it hasn’t been a company or The Fat Jewish under scrutiny for stealing jokes from social media, but rather a late-night talk show. A man from San Diego filed a lawsuit against Conan O’Brien for allegedly stealing four of his jokes from Twitter that were used in Conan’s late night monologue.
What’s bothersome about this is that Conan actually employs a large team of comedy writers. These are WGA writers. The network employs and trusts that these writers are creative and original enough to provide jokes for a popular talk show. It seems even the most highly esteemed writers may scroll through Twitter and, ahem, find inspiration.
Twitter recently instilled a new policy. Now anyone can submit a claim of copyright infringement, and Twitter staffers must investigate further to see if the claim is valid. If the claim is valid, Twitter deletes the stolen tweets. Although a step in the right direction, it’s still not enough, and there are other social media channels such as Instagram and Facebook that have yet to do anything to protect an author’s original content.
I wrote an email to the company that used my joke without my consent basically saying that I’d be happy to contribute jokes if it compensated me as it does with the fashion bloggers it pays. It replied back saying it’d rather just give me free clothes and offered to give me one or two free items from the store. The company didn’t seem interested in hiring me (or anyone) as a comedy writer. Not surprising considering there is no penalty for this company maintaining the status quo.
Just the other day, that site posted this photo on its Instagram with the hash tag #sourceunknown.
Source unknown my ass.
I stalk hot girls on insta more than hot dudes. Why u so pretty. How u so candid. How ur makeup so blended. Where u buy that outfit.— Shan Loom (@ShanLoom) July 3, 2015
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