My current day job is Intellectual Property. I’m an academic, I research, write about, think about, and investigate Intellectual Property, the laws that describe it, and how people interact with it. As a consequence of this, I have come to feel that Intellectual Property (IP) is a misnomer. It doesn’t mean anything, it’s a nonsense word, and it is unhelpful for assisting meaningful discussion of topics like copyright law, or “rights” in the intellectual economy. But I don’t like joke thieves and I don’t think many others do. Why would I feel animosity towards someone for stealing something that I don’t think can be “stolen”?

Recent accusations of joke theft aimed squarely at Amy Schumer

As it turns out, there is a little more nuance to this debate than I had thought. Comedians like Stewart Lee have suggested that there is a sort of divide of opinion between “mainstream” and “alternative” comics. It seems like the “mainstream”ers think that using other people’s jokes is okay, or they are at least more open to the practice than the “alternative” guys. Though I suppose it’s to be expected that those that benefit most from the practice would be more open to it.

I think that the language here is a little fraught. We use terms like joke “thief” because they make sense in a world where we already talk about intellectual “property”. We like physical analogies to the intellectual world and “ownership”, “theft”, “sale”, and so-on all become easier to discuss if we pretend that the intellectual is like the physical. It’s really not.

Now this isn’t an argument about why I feel this particular way about IP. That’s a huge debate, deserving of a fairly hefty word count of it’s own. But I don’t think that it’s actually that difficult to see a more effective way of think of joke “theft”, what I would call joke “fraud”, regardless of what you think of IP. So let me try to explain:

we dislike joke thieves because we were mislead

What is it that really hurts about joke theft? In my opinion, it’s not that the comedian “stole” something. Lets say a comedian steals a joke and performs it to an isolated native tribe in a language only they and the natives can speak. Did the original comedian really “lose” anything here? Was something taken from them? Would they have been able to perform this joke to those people? I don’t think so. At the very least, we might acknowledge that there is some sort of scale here. Meanwhile, something can’t be more or less “stolen”. This is why I think joke “fraud” is a better conceptualisation, it’s not ever really the original comedian that gets defrauded, it’s the audience. We dislike joke thieves because we were mislead.

When you pay to go see a comedy show you are paying to see a comedian tell you their thoughts, their observations, their feelings. If they give you anything else: you’re not getting what you paid for. We’re not annoyed by actors in comedy movies because we know they didn’t write their own lines (or at least we don’t expect that they should). Sure, the joke author might be pissed too. But I’d argue that it’s the audience that truly loses out. If you’ve got a good audience, one that isn’t ready to be offended at the drop of a hat, they hand a great deal of responsibility to a comedian. The audience allows the comedian, if they’re good, to take the audience’s brain and make them think about things they might never have done otherwise, to go to weird places, to think controversial thoughts, and to laugh about them. Audiences should be able to expect that, in return for this trust, that they should at least get what they paid for: the original thoughts of the comedian, even if those thoughts turn out to not be very funny…

I think we know this has to be true because of the defence of “parallel thinking”

Were the above not true then the defence of “parallel thinking” makes little sense. If something was really your original idea, as well as someone else’s, then you’ve defrauded no one. Those audiences that paid to hear your thoughts still got to hear them, and it’s worth noting that IP law does not work this way at all. “Parallel thinking”, doesn’t work for copyrights, trademarks, patents and so on. And though you may well have thought in parallel, you will still need to cease and desist, and stop selling your idea if someone else has got it to market first.

Now I don’t really think that people are ultimately going to change the terms. Something about joke thief just feels right; it’s got that little extra ‘pop’. But hopefully I can convince you to think about these issues differently, and in a way that I think makes more sense in terms of IP. I don’t hate joke thieves for the same reasons I don’t hate pirates but I think that joke fraudsters still have something to answer for.