IP, Technology & Data

After comedian Darren Walsh was awarded the Funniest Joke at the Fringe, it has been alleged that the winning joke may actually have been written by another comedian, Pete Cunningham.

Cunningham points to the comic mantra that: “there are only two or three jokes in the world and they are all sort of spun around” but nevertheless feels he deserves some recognition for the joke, which he claims to have been using for years.

Whether or not this is just a twitter or PR storm, what’s the legal position in the UK?

Let’s assume that Pete Cunningham did write the joke first. The joke itself could be protected by copyright, most likely in the form of a literary work (if he had written it down or recorded it in some other permanent form), in much the same way as a poem.

The fact that the joke is relatively short may be beside the point, as the courts have agreed to protect some short works such as a newspaper headline or short extracts from songs.

A copyright owner has the exclusive right to use and communicate their work and here to exploit the joke for commercial gain by, for example, performing it at the Fringe! Where someone copies a substantial part of a copyright work without permission from the owner they would likely be infringing such copyright and could be made to pay compensation for the unauthorised use of the work either based on the loss caused to the copyright owner or the gain made by alleged infringer.

Whether or not the allegations would “stand up” (excuse the comedy pun) in court is not clear.

Walsh for example could argue that he independently created the joke without ever having heard the other joke or that in any event his joke is sufficiently different or re-worked so that it was his own original joke and not a substantial copy.

These arguments may be difficult to credibly establish in such short pieces of work, if there is clear evidence that Cunningham wrote the joke first and made it available to the public.

This so-far is a light hearted dispute, where lawyers are not likely to have the last laugh. That said the old adage that “imitation is the sincerest form of flattery” may not always make even seasoned comedians laugh!

Robert Buchan

Partner at Brodies LLP
Robert has extensive experience in dealing with and resolving all types of IP, IT and technology related disputes across a wide variety of sectors with particular in depth expertise in luxury brands, food and drink, fashion, oil and
gas technologies and pharmaceuticals.
Robert Buchan