October 22, 2020 Articles

The Last Laugh: A Case Study in Copyright of Comedy and the Virtual Identity Standard

The virtual identity standard is the correct standard to judge infringement of fact-based jokes and yields positive implications for the comedy industry.

By Matthew L. Pangle

Comedy is in the midst of a golden age. Elahe Izadi, “The New Rock Stars: Inside Today’s Golden Age of Comedy,” Wash. Post, July 13, 2017. Never before has comedy been so diverse, full of depth, and accessible. Performers today can sell out arenas, tour hundreds of cities, and attract millions of fans, just like the rock stars of years past. Many comedians consider their material to be their craft; legendary comedian Dave Chappelle even elevates comedy to the status of art, comparing the punch lines of comedy to the brushstrokes of Rembrandt. See id. New forms and mediums of expression allow more of those punch lines. But the gift of more voices comes with a vice: More voices are talking about the same things. Crowded expression is bound to overlap, and figuring out who said what is often complicated. Comedians have traditionally relied on the social norms within their industry to police overlap. But with comedy’s resurgence over popular platforms like Netflix (see id. (discussing the growing number of stand-up comedy specials released by Netflix each year)) and Twitter, along with the emerging force of intellectual property law, copyright protection is becoming a major player in policing infringement of comedians’ material.

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