Whose Joke Is It Anyway?: Originality and Theft in the World of Standup Comedy

Abstract

Standup comedian Carlos Mencia has become infamous for his alleged joke-stealing. Outrage from the standup community, and a recent spate of legal arguments about copyright’s ability to protect comedians, have raised the issue of originality in standup comedy. These arguments about originality, however, all focus on literary originality—the originality of the joke. This essay places literary originality in relationship to performance originality, or the relative originality of comedians’ styles. A comedian’s style often defines her market share at least as much as her original content, yet most explorations of theft among comedians ignore style entirely. Style—consistent patterns of embodied practices—is just as vulnerable to theft as content. A number of legal cases suggest that style also can be protected from illicit appropriation, even though style is not, legally speaking, property. The law, in short, recognizes and protects style and content separately and equally, a distinction that also proves useful in theoretical considerations of literary originality and performance originality.

Improvisation and Stand‐Up Comedy

“…Understanding how improvisation works in stand‐up comedy enhances our appreciative and critical practices, including the potential to provide a basis for a taxonomic framework to distinguish between (for example) comedic monologues, improv sketch comedy, sketch comedy, spoken word performance, literary improvisations, spontaneous theater, and happenings. Additionally, such understanding may have practical consequences, including helping to sort out intellectual property issues, joke stealing claims, 39 pedigree and influence attributions, all of which have both moral, legal, and historical components (see, for example, Pate 2014; Bolles 2011; Oliar and Sprigman 2008). Furthermore, whether a joke or bit was composed or improvised in performance may be relevant to the moral evaluation of putatively morally questionable material.…”