From Stand-Up to Stand off: Katt Williams and Cedric the Entertainer’s Copyright Case is No Laughing Matter

The comedy scene, despite the camaraderie, can be a breeding ground for “joke stealers.” One of the most valuable pieces of advice that the late Bernie Mac, a comedy legend, gave to aspiring comedians was for them to avoid telling their jokes in front of other comedians, especially those who are more established and influential.

On a recent podcast titled “Club Shay Shay”, Katt Williams accused Cedric the Entertainer of stealing one of his “best jokes” (at the time) from a BET ‘Comic View’ performance in 1998 and using it in his own act in 2000s ‘The Original Kings of Comedy’. Cedric, of course, denied this claim. Nonetheless, this incident again raised the question of who owns a joke and how can comedians protect their creative work. For perspective as to how protecting one’s jokes is critical, the comedy event market in the United States was worth about USD 3.1 billion in 2023 (Statista) with strong growth prospects in 2024.

It is clear that the stand-up comedy business is very lucrative however, it is also not an easy industry to excel in. Stand-up comedians work hard to come up with original and funny jokes. They spend hours writing, rehearsing, and performing their material, hoping to make audiences laugh and enjoy their show. It is for this reason, as well as the financial impact mentioned above, that stand-up comedians look to protect themselves from joke theft and plagiarism. The question therefore is, can a comedian copyright their jokes?

What is copyright?

A copyright is a form of intellectual property that gives the creator of an original work the exclusive right to control how it is used, reproduced, distributed, performed, displayed, or adapted. It also gives the creator the right to be credited for their work and to benefit from its exploitation.

For example, if you write a book, you have the right to decide who can publish it, sell it, read it, or make a movie based on it. You also have the right to receive royalties from the sales or licensing of your book. And you have the right to sue anyone who copies or plagiarizes your book without your permission or acknowledgment.

How does a copyright apply to standup comedy?

Stand-up comedy is a form of artistic expression that involves writing jokes and then performing them in front of a live audience. The jokes are based on their personal experiences, observations, opinions, or imagination and delivered using various techniques such as timing, delivery, tone, gestures, facial expressions, and body language to enhance their jokes. Under copyright law, these jokes are considered as literary work as they are composed of words and sentences that convey meaning and emotion.

Therefore, standup comedians should have the right to control how their jokes are used by others. They should be able to decide who can perform them, where they can be performed, how they can be performed, and whether they can be recorded or broadcasted. They should also be able to prevent others from copying or stealing their jokes without their permission or attribution.

As much as this idea is theoretically a ‘no brainer’, the application of this principle is not so easy. Below is a legal case that highlights how copyright cases are litigated.

Case Law

Foxworthy v. Custom Tees (1995)

Plaintiff: Jeff Foxworthy, a well-known comedian famous for his “you might be a redneck if…” jokes.

Defendant: Custom Tees, Inc., a company that sold t-shirts with slogans similar to Foxworthy’s redneck jokes.

Issue: Whether Custom Tees infringed on Foxworthy’s copyright and trademark rights in his redneck jokes and phrases.

Foxworthy’s Arguments:

• He owned the copyrights to hundreds of his “you might be a redneck if…” jokes as individual creative works.

• The phrase “you might be a redneck if…” was a protectable trademark that identified the source of his humor.

• Custom Tees’ unauthorized use of his jokes and the phrase on their t-shirts constituted copyright and trademark infringement.

Custom Tees’ Arguments:

• Foxworthy’s jokes were short, unoriginal phrases and not eligible for copyright protection.

• The phrase “you might be a redneck if…” was a common expression and not a distinctive trademark.

• Their use of the jokes and phrase was fair use or nominative fair use, which allows the use of copyrighted material for purposes of criticism, comment, or identification.

Court’s Decision:

The District Court ruled in favor of Foxworthy on both the copyright and trademark claims.

Copyright:

• The court found that Foxworthy’s jokes, although short, were sufficiently original and creative to deserve copyright protection.

• Custom Tees’ use of the jokes without authorization constituted copyright infringement.

Trademark:

• The court found that the phrase “you might be a redneck if…” had acquired secondary meaning through Foxworthy’s extensive use, associating it with him and his comedy.

• Custom Tees’ use of the phrase on their t-shirts was likely to cause confusion among consumers, believing they were buying merchandise from Foxworthy.

Outcome:

The court granted Foxworthy a preliminary injunction, prohibiting Custom Tees from selling t-shirts with his jokes or the “you might be a redneck if…” phrase. The case was ultimately settled out of court.

Significance:

• This case was a landmark decision in the protection of comedic material under copyright and trademark law.

• It established that short, creative jokes can be protected under copyright if they meet the originality standard.

• It also clarified the circumstances under which common phrases can acquire secondary meaning and be protected as trademarks.

Copyright requirements

Having seen how fine the margins are with regards to protecting jokes, below are some of the prerequisites to copyrighting a joke.

1. Originality

Jokes are a special kind of creative work that balance between original expression and common knowledge. With regards to originality the following should be noted:

• Jokes can be eligible for copyright protection if they meet certain criteria.

• What matters is how the idea is expressed, not the idea itself. This means that there can be two jokes that are based on the same premise, but they both can be copyrighted if they use different words and styles.

• There’s no minimum standard for how long or complex a joke has to be to be copyrighted. Even one-liners or “punchline” jokes can qualify if they are original enough.

However, even if the above is met the following challenges still exist;

• Showing originality for jokes can be difficult. Courts will examine whether the jokes have elements that are distinctive and creative, not just common sense or clichés.

• The shorter and simpler the joke, the harder it is to show originality. Jokes that use everyday language or well-known concepts may not pass the copyright test.

• The way the joke is told, which is essential for making it funny, is not protected by copyright. So, even if the words are the same, another comedian’s performance could be seen as a different expression and not a violation.

Therefore, a comedians jokes could be safe from being copied, as long as they show some creativity. However, if the jokes are very basic or obvious, other comedians could tweak them slightly and avoid being accused of stealing.

Tips to create originality:

• Create jokes with twists, wordplay, or personal stories that make them stand out from the usual.

• Build a distinctive style and delivery that makes the jokes clearly yours.

• Mix common ideas in new ways: Take inspiration from everyday topics, but combine them into your own funny story with original insights and humour.

2. Fixation

Fixation means capturing the jokes in a permanent way and is a requirement for copyright protection. This can be tricky for live comedy, which is different from other types of works that are easily fixed in a tangible medium. It depends on the audience’s memory or interpretation. This makes it hard to prove originality and timing if someone else copies the jokes.

Below are some tips about fixation for stand-up comedians:

· Streaming your gigs: Platforms like YouTube or other live streaming services can be used to broadcast your performances online. This will show the date and time of the jokes.

· Publishing excerpts: Jokes can be published in books or comedy albums to share the jokes with a wider audience.

By placing the jokes in a tangible medium, the claim to ownership is strengthened and prevents others from stealing the jokes.

Conclusion

Copyrighting stand-up jokes is a very difficult task, as there is no clear legal definition of what constitutes a joke, and how much originality or creativity is required to claim ownership. Moreover, jokes are often based on common topics, observations, or experiences that many comedians may share or encounter. Therefore, it is hard to prove that someone intentionally copied or stole a joke from another comedian, unless there is direct evidence of plagiarism or infringement.

An alternative to copyrighting is to go the Katt Williams rout and call out the copycats publicly, either on social media, in interviews, or on stage. This may deter some comedians from stealing jokes, as they may fear the backlash or the loss of reputation. However, this method also has its drawbacks, as it may create conflicts, lawsuits, or negative publicity. Additionally, it may not be effective against some copycats who may not care about the opinions of others, or who may claim that they came up with the joke independently.

Therefore, there is no easy solution to the problem of joke theft in the stand-up comedy industry. Comedians may have to rely on their own creativity, originality, and style to stand out from the crowd and to avoid being accused of copying others. Alternatively, they may have to accept that some jokes may be reused or recycled by others, and focus on creating new and better material.

The content of this blog is as a result of research by the author and is not intended to be a substitute for professional legal advice, diagnosis, or treatment. Always seek the advice of a qualified attorney with any questions you may have regarding a legal matter.