The Last Laugh? Copyright & Comedy

The fields of comedy and the law don’t often have opportunity to converge – or, as Matthew Pangle, L’20, puts it, “usually, when someone steals a joke, you don’t go to court over it.” The exception to that rule is the subject of Pangle’s recent scholarship on the intersection of copyright law and comedy – a paper that won the Virginia State Bar’s Intellectual Property Section Student Writing Competition. Pangle was the third consecutive Richmond Law student to win the competition.

In “The Last Laugh: A Case Study in Copyright of Comedy and the Virtual Identity Standard,” the foundation for Pangle’s thesis about copyright laws and the social “norms” of comedy is a simple one: They just don’t mix. “Copyright is a very regimented way of regulating infringement,” explained Pangle, who wrote the paper for Professor Chris Cotropia’s Intellectual Property Law and Policy seminar. But in the field of comedy, “there’s a structure of norms – the way that comedians police their own material, essentially – that has nothing to do with copyright.”

One such norm is that the first person to put a joke on television “owns” that joke.

Pangle explains in his paper, “Even if an amateur comic performed the joke first, the public perceives the amateur as having stolen the material once someone performs it on television. To avoid embarrassment and potential negative career backlash as a ‘joke-stealer,’ the amateur would be forced to stop performing the joke, despite the rightful claim of ownership over the material.”

Pangle’s examination of a recent case tells a different story. In Kaseberg v. Conaco LLC, freelance writer Robert Kaseberg brought claims against Conan O’Brien and his team of writers for copying five separate jokes that Kaseberg had tweeted. The plaintiff tried to settle the dispute outside of court – relying on those comedic social norms – before escalating to legal action. And when the United States District Court of the Southern District of California decided that some of those jokes met the threshold for “thin” copyright protection and that the case would go before a jury, Conan’s team decided to settle.

“Matt’s scholarship does a terrific job exploring the unique and ever-changing relationship between intellectual property protection and different industries,” said Cotropia. “The decision in Kaseberg is a perfect vehicle by which to view copyright law’s future impact on the production of new comedy.”

Using this case as a lens, Pangle offers a fresh insight into copyright law and the entertainment industry – an intersection that, in this case at least, resulted in real industry impact. “Now some lesser known comedians have a foothold to find some sort of legal remedy when the social norms fail,” said Pangle. And ultimately, he concluded in his article, “Courts are beginning to take jokes seriously.”