No Joke: When Laughter Turns to Litigation

5th October 2021 Media Law

Although best-known for his abilities with a paintbrush, Pablo Picasso was also handy with a quip.

He is often cited as the source of the observation that "lesser artists copy; great artists steal".

Therein, however, lies an irony, in that a very similar remark is attributed to both the Russian composer Igor Stravinsky and the American poet and essayist TS Eliot.

The struggle to determine authenticity and originality from pastiche has been common to many branches of the arts over the years.

It's also something which is very much at the heart of a new dispute between two British comedians.

Newspapers have reported that Darius Davies is being sued for defamation after online posts claiming that Korang Abdulla (whose stage name is Kae Kurd) stole one of his routines.

Mr Davies accused Mr Abdulla of performing a sketch about being nagged by a 'smart' fridge on a television show last year, some time after he had allegedly created and started using the same routine on the UK comedy circuit.

The matter is being described as a landmark row, but allegations of joke theft are nothing new.

Bob Hope, Woody Allen and Bill Hicks are among the legendary comedians who have complained about having their material taken and used by their peers without acknowledgement.

What is different is that no matter how high-profile arguments of this sort are, they rarely come to court.

An allegation that Mr Abdulla has been guilty of dubious professional practices is obviously serious. Claims of professional wrongdoing are at the heart of the many defamation cases that we deal with on behalf of clients.

Before making such a claim, an accuser needs to be sure of their facts, because it may well attract a legal complaint.

In this case, the context is originality in the quick-witted world of comedy and particularly the brand which deals with topical issues.

Interestingly, an academic paper in the American Sociological Review has concluded that "most instances of possible joke theft are ambiguous, owing to the potential for simultaneous and coincidental discovery".

Given that inspiration can come from and disappear into thin air, comedy is not like music or fine art, where chord progressions and visual references are more reliably a matter of lasting record.

Many comedy routines are not written down or taped either and, therefore, present particular difficulties in running, for example, a potential copyright infringement complaint.

Some comedians do write down their jokes, of course. Bob Monkhouse was well-known for having a library of those which he'd used over the years.

In music, the ready availability of sheet scores or recordings offer the opportunity for running easier 'copycat' complaints.

The rock band Led Zeppelin was last year cleared of plagiarising a song by another act Spirit in making 'Stairway to Heaven'.

George Harrison wasn't so fortunate, though. In releasing 'My Sweet Lord', his first solo single after the demise of The Beatles, he was found guilty of inadvertent copyright infringement.

Other individuals, such as Damien Hirst - the subject of a number of claims that he has borrowed ideas from other artists - have been quite open about exploiting their influences.

In an interview three years ago, he boldly admitted that "all my ideas are stolen anyway".

The outcome of the dispute between Mr Davies and Mr Abdulla remains to be seen.

Assuming that attempts at settlement have failed, the litigation process will now take its course.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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