Who owns a joke? Can a comedian sue if someone steals his material?

by Peter McGraw & Joel Warner

As long as people have been telling jokes, people have been stealing them. Take the celebrated comedian Milton Berle, a guy so joketheftnotorious for lifting from others’ routines he was known as “The Thief of Bad Gag.” Of all Berle’s suspect material, one particular joke stands out for its lack of originality: “A man comes home and finds his best friend in bed with his wife. That man throws up his hands in disbelief and says, ‘Joe, I have to—but you?’ ” According to Jimmy Carr and Lucy Greeves, in their book Only Joking: What’s So Funny About Making People Laugh, the joke bears an uncanny resemblance to one found in the fourth century tome Philogelos,the world’s oldest-known joke book: “Someone needled a well-known wit: ‘I had your wife, without taking a penny,’ He replied, ‘It’s my duty as a husband to couple with such a monstrosity. What made you do it?’ ” For this joke to get fromPhilogelos to Berle, it was likely passed from one humorist to another for 1,700 years. If Berle stole it, in other words, he was hardly the first.

These days, with so much comedic material captured and preserved on smartphones, YouTube clips, and tweets, joke-stealing allegations are proliferating.Roseanne Barr accused Two and a Half Men of nabbing some of her material. TheHuffington Post wondered if Chris Rock had borrowed a gag from his admirer, Aziz Ansari. Sammy Rhodes, a University of South Carolina campus minister, took a hiatus from Twitter after he was roundly criticized for plagiarizing funny tweets.

With all of this joke borrowing going on, what’s an aggrieved comedian to do? Does anyone actually own a joke, after all? What legal recourse, if any, does that owner have when some hack swipes his best material?

Several years ago, legal scholars Dotan Oliar and Christopher Sprigman asked themselves these questions in response to one of the most prominent joke-theft cases yet: In 2007, Joe Rogan confronted Carlos Mencia onstage at the Comedy Store in Los Angeles and accused him of stealing material. News of the clash, which was caught on video, caused some to bemoan the state of comedic plagiarism, while others argued that every comedian steals and is stolen from—it’s just part of the job.

In the wake of the controversy, Oliar and Sprigman decided take a scholarly look at the matter. “It just seemed odd,” says Sprigman, a visiting professor at the University of Virginia School of Law. “We just wondered, ‘Is this thing normal, that comics confront each other? What else do comics do when they think a joke is stolen?’ ”

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