Why is it that when we "discover" a joke, or a song, or a photograph that particularly appeals to us, or strikes a chord, we feel entitled to appropriate it?
Could it be something deep in our genes? Perhaps it is a primal hunter-gatherer instinct. If that is the root cause of copyright infringement, it is no laughing matter for the professional creator... particularly for the comedy writer.
Which brings me to my hook line, "funny-ha-ha" and comedy writers rights.
Should comedy writers have the same rights as songwriters, or photographers? I think so, but you almost never see attribution or credit given to the original creator of a joke, do you?
Yet, what is a joke?
It is not primarily an idea. Part of what makes a joke funny is the performance, the timing by the teller of the joke. Not everyone makes equally effective use of the pause, the emphasis, the sidelong glance, wave of the hand, or other gesture, and how they deliver the shock or surprise or wicked twist.
While an idea cannot be copyrighted, the expression of an idea can be copyrighted.
In the case of a photograph of, say, a lighthouse, anyone at all can take a snap of a lighthouse. What makes the image copyrightable is the skill and vision of the photographer in chosing the exact light quality, the angle of the light, the length of the shadows, the magnification, the filters, the vanishing point... etc etc.
Can one take a joke, and substitute every word with synonyms? Off the top of my head, I would say that one cannot. Often, the crux of a joke is a homophone, as in "Who's On First" credited to Abbott & Costello.
As David Oxenford explains, maybe some of the streaming digital services are exploiting comedy performances --obviously for profit-- but are not paying the writers.
"...The claim in the lawsuits is that the authors of the script of any comedy bit have the right to control the performance of their works in the same way that composers of a song control the rights to use that song. [And] if these services are playing these comedy bits through a digital audio performance, not only do the comedians who are recorded performing such bits deserve a royalty, but a separate royalty should also be paid to those who wrote it...."
David Oxenford explains how music royalties and composer and songwriter royalties are paid, at least in theory. (There are other theories.) One problem, as Oxenford explains it, is that most American laws and consent decrees, and so forth, specify "musical works".
For any reader of our alien romances blog who happens to also pen original jokes, you might be interested to hear that
"...two organizations, Spoken Giants and WordCollections, have been formed to act as PROs for the composers of the works used in spoken word recordings..."
Come to think of it, that might also be of interest to audio book writers and their voice talent. David Oxenford's article should be read in its entirity. He is very thorough. His bottom line appears to be unenthusiastic about a possible expansion of royalty rights, but we should not read only that with which we agree, especially when it comes to copyright!
Which brings me to a very, very useful blog on the scope of copyright in the USA from Andrew J. Thomas, Jacob L. Tracer, Lauren M. Greene, and Steven R. Englund of the law firm of Jenner & Block LLP.
If my memory serves, this snapshot is part of a series covering the scope of copyright in various major countries, all of which is clearly set out with bullet points, and the sort of copyright-related questions that everyone needs to ask and have answered. Anyone honest, that is. (My words.)
What types of works may be protected by copyright?
What types of rights are covered by copyright?
What may not be protected by copyright?
Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?
Are architectural works protected by copyright? How?
Are performance rights covered by copyright? How?
Are other ‘neighbouring rights’ recognised? How?
Are moral rights recognised?
The moral rights segment is interesting, as is the placement in the list of topics. We don't talk enough about moral rights, in a copyright-related context, IMHO. Perhaps I should blog about it some time.
Rowena Cherry
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