Pham (2019)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Pham (2019)
Title: Standing Up for Stand-Up Comedy: Joke Theft and the Relevance of Copyright Law and Social Norms in the Social Media Age
Author(s): Pham, H.
Year: 2019
Citation: Pham, H. (2019) Standing Up for Stand-Up Comedy: Joke Theft and the Relevance of Copyright Law and Social Norms in the Social Media Age. Fordham Intellectual Property, Media and Entertainment Law Journal, 30(1)
Link(s): Open Access
Key Related Studies:
Discipline:
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About the Data
Data Description: The study consists of interviews with eight full-time professional stand-up comedians.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
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Abstract

“This Article reveals that while social norms offer protection to stand-up comedians against joke theft within the stand-up comedy industry, they do little to prevent joke theft outside the traditional comedy community. Joke theft has risen with the increased popularity and use of social media. In particular, joke aggregators such as “The Fat Jew” take and publish on social media jokes by other comedians. In the social media world, the norms system underperforms. Norms do little to protect against joke theft by joke aggregators because they exist outside of the industry and are unaffected by norms governing stand-up comedians. This Article will utilize the perspectives and insights of several full-time professional stand-up comedians in order to understand the creative process underlying the writing and dissemination of jokes; the effects of joke theft on a comedian’s incentives to create and disseminate; and to consider how copyright law can play a greater role to protect against joke theft on social media. This is important because joke theft on social media harms a comedian’s pecuniary interests, a comedian’s control over his or her jokes, a comedian’s ability to disseminate his or her jokes and, as one comedian put it, “devalues the industry and what we do.” This Article submits that there are no doctrinal barriers to copyright protection for jokes. Rather, comedians have not relied on copyright protection to protect against joke theft because there are practical barriers to court-enforced copyright protection for jokes (e.g., cost, complexity, and time). The Article examines two solutions in which the practical barriers to enforcing copyright protection can be reduced or removed: the existing DMCA notice-and-takedown procedure and the proposed Copyright Claims Board.”

Main Results of the Study

Overall, the norms system governing the stand-up comedy industry underperforms; particularly where social media is concerned extra-community players are unaffected by intra-community norms:

Joke infringement via social media does not necessarily curtail the motivation or incentive for comedians to create more jokes, most of the participants in this study reporting being intrinsically motivated to do so. However, infringement does impact the dissemination of the joke; as soon as this occurs, the joke is abandoned by the comedian. The potential market for the joke becomes destroyed upon the premature dissemination and unauthorised re-contextualisation of the joke, harming its form and delivery. This may lead to loss of reputation of the comedian as well as the loss of a potential audience.

Furthermore, the fast pace of social media means that retrospective attribution means very little, even if credit is given after a day’s delay (new material is expected immediately, with little scope for dwelling on new content).

Policy Implications as Stated By Author

The study makes two suggestions to prevent infringement of comedians’ copyrights on social media: firstly, by making use of the existing DMCA notice-and-takedown procedure (or promoting awareness of this), and secondly by introducing a small claims court for copyright claims (noting that this suggestion has less support from interviewees in the study).


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
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Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 8
Level of aggregation: Individual
Period of material under study: Unknown