Joke theft isn’t funny, but it can pay off for the victim

Amy Schumer has been accused of using material that is very similar to that of other comics. Matthew Peyton / Comedy Central

Robin Williams, the frenetic actor and comedian who died a few years ago, had a habit of stealing jokes. Young comedians would complain that he’d show up at their shows, laugh along with the audience, and then a few days or weeks later would appear on widely-seen television chat shows and effortlessly drop their material into his conversation.

This, they insisted, was worse than theft. It was a case of a powerful and already-famous comedian skimming off the cream from dozens of up-and-coming, usually penniless, performers.

Williams, to his credit, never really denied it. He simply confessed that in the rush of performance, with his brain zooming at some untold speed – and everyone can agree that he was an unstoppable force of nature – he simply no longer remembered that the joke or observation or one-liner that popped into his head had been written and performed by someone else.

And also: he reportedly paid out a lot of money to soothe some of the outrage. If he had truly stolen (or, more nicely put, “inadvertently appropriated”) another comic’s material, he was known to send over a very fat cheque in restitution. Rumour had it that those payments often amounted to US$10,000 each, which for an otherwise destitute comedian must have gone a long way towards making peace. Some comedians, it was said, would show up at a comedy club whenever they heard Robin Williams was in the audience, angling for the chance to have a joke stolen followed by a secret thank-you cheque.

Comedians and writers have very little in the way of what’s called, in legal circles, “defensible intellectual property”. When a writer writes something, it has to be published – or at least searchable on Google – to be truly protected. And even then, the protection isn’t financial or legal, it’s moral. I’ve had whole chunks of my work lifted pretty much wholesale without any attribution at all. A friend of mine once told me that under no circumstances should I see a certain independent film because, as he put it, “a lot of it is from your first book, and it’ll make you furious, but there’s nothing you can do about it, so why put yourself through that?” My friend, I should disclose, is an attorney whose practice centres around intellectual property issues. So when he says, “there’s nothing you can do about it”, I believe him.

Comedians, though, operate under somewhat different circumstances. While it’s true that they, like writers, can’t really do anything when their work is stolen – the most they can hope for is that the thief is a benevolent and apologetic one, and sends them some money - the close-knit and gossipy community of stand-up comics has its own internal system of justice.

Sometimes two smart and funny people can come up with the same basic joke at the same time. Jim Gaffigan– for my money one of the funniest stand-up comics around, and one who has eliminated anything coarse or profane from his act – does a many-minutes-long comic piece about a revolting frozen snack called a Hot Pocket. The Hot Pocket is a microwaveable mini-pastry filled with tasteless who-knows-what and Gaffigan delivers an extended dissertation on the subject. It’s hilarious.

Patton Oswalt, also a funny and sharp comedian, once had his own set of Hot Pocket observations. (Hot Pockets are awful enough, apparently, to inspire multiple stand-up comedians.) Friends told him that he’d have to eliminate that subject from his act. It looked, they said, like he had stolen it from Gaffigan, which wasn’t true. But after Oswalt heard Gaffigan’s longer and more complete Hot Pocket routine, he knew what he had to do: retire his own Hot Pocket material. Gaffigan, he knew, “owned” the subject.

Amy Schumer, who burst into international fame with her comedy hit Trainwreck, has been accused, like Robin Williams before her, of taking other comics' material as her own. Unfortunately for her, in the intervening years between Williams' heyday as a comedian and her own, the internet was invented. Williams merely had to contend with rumours and recollections about picking jokes from this or that comedian's act. Stand-up comedy, back then, was a totally temporary affair – no one recorded a young performer's act on video. There was no YouTube, no Vimeo.

No such luck for Schumer. Google the words “Amy Schumer steals jokes” and the first few responses are pretty devastating side-by-side video comparisons of Amy Schumer’s material – especially from her most recent Netflix comedy special – and another comedian’s, often recorded years before. In one case, a sketch from her hilarious (and, it must be said, mostly dazzlingly original) sketch comedy show on Comedy Central is an almost direct replica of an earlier sketch on another show.

Schumer has responded to the inevitable internet-based sniping and accusations with a defiant and self-pitying tone, which has only made things worse. The smart route to take is the Robin Williams route: a discreet apology followed by a monster-sized cheque. And when you really think about it, that’s a pretty good system for all of us to follow when we’ve done something wrong.

Rob Long is a writer and producer in Los Angeles

On Twitter: @rcbl