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Why It’s Rarely Easy to Prove Joke Theft in the Legal World

How far would you go to defend a dirty joke about having sex with a pumpkin?

Comedians Ryan Hoffman and Nick Ruggia spoke with Variety about their claims that recent “Saturday Night Live” segments “Pumpkin Patch” and “Pound Puppy” plagiarized two of their sketches that were uploaded years earlier to the YouTube channel for their comedy troupe Temple Horses.

They consulted a lawyer and sent NBC a letter detailing the similarities in the work but were told that after an internal investigation, no wrongdoing was found. Feeling as though they had little legal recourse, they took to the press.

“For the record, we don’t want to be talking to you — no offense,” Hoffman told Variety. “We’re doing this because we tried to handle this in a professional and quiet manner, and it didn’t work to our satisfaction, so it’s not like we want to be out here burning down the world. We’d much rather [do] this quietly. The mechanisms for that, at this point in time, just don’t exist.”

NBC declined to comment, but an “SNL” source said NBC is drafting a formal response to Hoffman and Ruggia’s legal claims. Beyond that, it is unclear what its next move may be.

Indeed, proving copyright infringement in the creative space can be a daunting task.

“The claim needs to be predicated on an allegation that the other party copied the expression of the idea — it can’t merely be the idea itself,” said Jonathan Barnett, professor at USC Gould School of Law, who added that it’s easier to prove claims about written, rather than verbal, work.

On top of that, he said, “not only would the artist need to show that there is either exact replication or resemblance between her work and the second work, the artist also needs to show that that resemblance arises from the fact that the second artist actually copied from the original person’s work.”

That can be difficult to do in the internet age. Temple Horses’ pet sketch racked up some 4,800 views on YouTube prior to Hoffman and Ruggia coming forward with their claims. That’s relatively low compared with a viral video, but the existence of their sketch on the web means that anyone, from “SNL” or elsewhere, technically has access to it.

And there’s always the chance that two similar pieces of art — or comedy — came into being through “independent creation,” which Barnett said is the act of two artists creating the same or similar work without being aware of the other’s creation. When topical premises like the border wall or Trump are popular, it’s not surprising that similar-sounding jokes are made about the same topic.

In any case, comedians mostly seem to handle their battles outside the courtroom.

“Entering into the legal system is incredibly intimidating,” comedian-writer-producer Tim Heidecker told Variety. “I think most people don’t have the resources to do that, and feel a little self-conscious about placing that kind of importance on something like a d–k joke that somebody else also tweeted.”

“I think most people … feel a little self-conscious about placing that kind of importance on something like a d— joke that somebody else also tweeted.”
Tim Heidecker

While comedians don’t sue each other much, according to UCLA School of Law professor Kal Raustiala, the informal rules in the comedic community dictate that “if you came up with the premise of the joke, you own that joke.”

“Those don’t really track what the law says, but that’s how they kind of keep things, in their view, from getting out of hand,” Raustiala said. “And I think in practice it actually works pretty well. So it’s like a social-shaming kind of approach.”

Case in point: Well-known performers like Heidecker, John Mulaney, Patton Oswalt and Amy Schumer have taken to social media to rally support for the #f–kf–kjerry effort to shun the popular meme aggregator and marketing agency F–kJerry. Comedy editor and writer Megh Wright started the movement amid accusations that the company had a history of reposting other people’s content and monetizing it through sponsorships.

“You smell the exploitation happening there,” said Heidecker, adding, “It’s one thing if it’s people putting up Instagram posts because they love funny stuff and they curate weird things … but these guys were clearly building a business with advertisers, and once they cross that line, you gotta shut it down.”

He believes Instagram is culpable in the appropriation of artists’ content.

“They seem to have no problem shutting down sites if there’s a nipple on there or a woman breastfeeding her baby or something,” said Heidecker. “They seem to have the technical capability of having a lot of influence over what goes up on their site, and to look the other way when it comes to this stuff; it feels actively negligent.”

When litigation is pursued, the vast majority of such claims end in “a settlement, not in a full-blown trial,” said UCLA’s Raustiala. “That’s a very rare occurrence.”

One lawsuit, brought against Conan O’Brien’s Conaco production company by Alex Kaseberg, is an exception. Kaseberg alleged that O’Brien’s team used his material, including a joke about Tom Brady, on the “Conan” show without his consent. According to court documents acquired by the Times of San Diego, the trial begins in late May.

“The Conan case will be a bellwether of whether this is something you’re going to see from now on,” said Jonathan Hyman, a partner at the Los Angeles office of Knobbe Martens. “It’ll be interesting to see whether there’s actually copyright protection afforded to this joke.”

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