Twitter Joke Thieves Brought to Justice, and Everyday Tweeters Should Be Careful

You have a better chance of stopping a serial killer than a serial thief in comedy.

OK, ironically, I stole that from comedian David Brenner. Thanks to Twitter and copyright law, perhaps those odds have changed.

A freelance comedy writer recently sued comedian Conan O’Brien for copyright infringement, claiming O’Brien stole jokes the freelancer posted on Twitter.

Also, Comedy Central recently cancelled its contract for a comedy series with Josh Ostrovsky, who goes by “The Fat Jew,” in light of allegations that Ostrovsky repeatedly stole jokes tweeted by others.

So why should you care? Well, Twitter recently has been honoring requests to take down tweets containing cut-and-paste stolen jokes. It replaces the text of the offending tweet with this message:

“This Tweet from @[username of offender] has been withheld in response to a report from the copyright holder.”

That essentially says you’re a tweet thief. Do you want your Twitter followers to see that?

Also, at least one organization, called Plagiarism is Bad (@PlagiarismBad on Twitter), is running a name-and-shame operation against stolen tweets.

It publishes a list of proven tweet stealers. You can upload it to your Twitter account to block anyone on the list from following you on Twitter.

You can debate whether joke theft on Twitter – literally cutting and pasting someone else’s tweeted joke without attribution – is immoral.

But copyright law is clearer. You own a copyright to any original material you write, such as a tweet, regardless of whether you register that copyright. Under copyright law, no one is allowed to copy your original tweet, even with attribution, unless that copier has your permission or the copying is fair use.

Twitter wants to avoid being held liable for copyright infringement by its users, so it must and does run a program to act on notices of stolen material. Under the federal Digital Millennium Copyright Act, Twitter is shielded from liability for copyright damages as long as it acts on those complaints in a timely fashion.

You can report copyright infringement to Twitter via an online form. You don’t have to have registered your copyright to request a takedown.

Could you, an ordinary Joe, also get hit with a copyright-infringement lawsuit for tweet stealing, like what Conan O’Brien is facing?

In theory, yes, but a suit against someone who isn’t an entertainment celebrity probably would be unprofitable. The plaintiff probably would spend a lot more on attorneys’ fees than he could recover in damages from a non-celebrity.

So, how can you pass along humor on Twitter and stay clean legally?

The best option is to retweet jokes rather than ripping them off – cutting and pasting them and claiming them as your own.

In theory, you could be retweeting something someone else ripped off, which could result in your tweet being taken down, but that’s not as embarrassing because you would have acted innocently and can tell the world so.

If you can’t resist making the joke your own, rephrase it. Copyright law does not protect ideas. It just protects only the specific way a writer expresses ideas. It’s not infringement to paraphrase someone else’s idea, such as a joke.

Even if you paraphrase, it would still be better to give credit to the idea creator to avoid being accused of plagiarism – using someone else’s material without attribution.

But remember this: copyright infringement and plagiarism are different things. It’s copyright infringement to copy someone else’s expressive work without permission even if you give credit (unless your copying is a fair use).

Many folks mistakenly believe you can copy someone else’s creative work if you give credit.

On the flip side, plagiarism – failing to give the source credit − isn’t against the law. It’s just a violation of literary morality.

That brings us back to how you should react if someone rips off your Twitter joke. If it’s literal cut-and-paste copying, you have a basis for a takedown request to Twitter and maybe a lawsuit if the thief makes money off the theft.

But you have no legal claim or redress if the thief just paraphrases your tweet.

Finally, you may ask, what’s a fair use? It’s copying someone else’s content for a new purpose, such as criticism, parody or to educate.

That’s what I did at the top of this column with the David Brenner line – make a teaching point. Almost certainly, being a Twitter joke thief isn’t fair use.

According to the Los Angeles Times, Comedian Carl Reiner once quipped that senior comedian Milton Berle was known in the business as the “Thief of Bad Gags.” Thanks to Twitter and copyright law, perhaps that approach won’t work anymore.

Written on August 25, 2015
by John B. Farmer

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