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27th March 2016

Cameron Crawford, Indigo Media & Entertianment Lawyers

by Cameron Crawford


Since the days of Vaudeville, many comedians have borrowed material from others and passed it off as their own work. Back then, there were few chances that a performer from one area would meet one from another and a single twenty-minute set could sustain a comic for a decade. Furthermore, even if a comic wished to enforce intellectual property rights, the live acts were rarely recorded, so substantiating claims would have been challenging.

The arrival of television and, later, home video and DVDs meant that professionals at the top of their profession had to be more careful about ‘borrowing’, as Dennis Leary found out in the 90s when he (allegedly) copied Bill Hick’s entire act in the successful album and DVD ‘No Cure For Cancer’.

More recently, the advent of YouTube has made more obscure comedians’ acts widely viewable, and respected funnymen such as Louis C.K. Joe Rogan and Doug Stanhope have had original material copied and modified by a raft of aspiring stand-ups.

Now that Twitter allows everyone to become a comedian in 140 characters or less, surely the days of comedians being able to protect themselves against plagiarism have passed? Not necessarily: Conan O’Brien is currently defending a $600,000 lawsuit for allegedly stealing a fellow comedian’s jokes from comedian Alex Kaseberg’s Twitter feed and using them in O’Brien’s late night show monologue.

O’Brien and his team insist that there is no merit to the lawsuit, but Kaseberg has been able to draw attention to strong similarities on at least 4 occasions. For example, in January 2015, Kaseberg tweeted: “A Delta flight this week took off from Cleveland to New York with just two passengers. And they fought over control of the armrest the entire flight.” On the same day, O’Brien said during his show: “On Monday, a Delta flight from Cleveland to New York took off with just two passengers. Yet somehow, they spent the whole flight fighting over the armrest”. More recently, jokes that are similarly coincidental concerning Tom Brady, the Washington Monument, and Caitlyn Jenner were also used by O’Brien that appeared originally in Kaseberg ‘s Twitter feed.

So, how does the law view any potential unauthorised use of such material?

For Kaseberg to succeed in court, he will not only have to prove that that the jokes are original, but that they are creative and O’Brien was not simply repeating comedic ‘ideas’. If he can prove this, he will then have to show that O’Brien actually stole the jokes by showing that (a) O’Brien had access to material (fairly easy to do as it was on Twitter) and (b) there was substantial similarity. However, O’Brien can still raise the defense of ‘fair use’, which allows use of material without permission from the copyright owner without permission, for reasons such as to comment upon, criticize, or parody the original work. For example, the comedians’ material can be replicated in this article for purposes of comment and review on the basis that the public reaps benefits the review, which is enhanced by including some of the copyrighted material.

This case may become more complex from an evidential perspective, as where tweets and other material in written or oral form that are then repeated on broadcast television in a live recording, copyright infringement is much more difficult to substantiate, material has been used in a different format, and is not an identical copy. However, if the rights owner can prove that his works have been used incorrectly, the user (in this case Conan O’Brein) and the platform publishing the material (in this case the broadcaster) may be held to account for the infringement.

This then begs the question: in social media, with many thousands of people able to disseminate material, how do public platforms such as Twitter and Facebook manage such risk?

Legislation in the US has the answer in the form of the Digital Millennium Copyright Act (“DMCA”), which sought to maintain the efficiency of the Internet while upholding the essence of intellectual property protections. Under the DMCA, content can be protected by copyright law, as long as they are in are original and in a tangible form (such as text, video and audio recording). However, social media platforms and network service providers can rely on the DMCA’s ‘safe harbor’ provisions, which allow such organisations to manage liability in the event of any intellectual property infringement.

Twitter provides for a process under which rights owners may lodge a complaint, together with certain information that can result in removal of the allegedly offending material.

Following removal, the onus is on the alleged offender to prove that the applicable content does not infringe any rights. Twitter does not seek to judge whether the relevant material does indeed infringe the DMCA. According to the DMCA, Twitter is under no duty to weed out copyright infringing material provided it does not actively protect it. In addition to removing the relevant content, Twitter will not be liable for damages for user-generated content that infringes another copyright as long as Twitter:

  • is not aware of any infringing content on its site nor knows of any “red flags” that would make an infringement apparent;
  • does not receive a financial benefit directly attributable to the infringing activity; and
  • acts expeditiously to remove the infringing content from its site once it has received proper notice of the infringement.

However, during 2015, the ability of Twitter to rely on the ‘safe harbor’ provisions without undertaking more rigorous procedures may have been brought into question. For example, in the case of Pierson v Twitter (2015), a live-music photographer alleged that Twitter failed to remove tweeted pictures of her copyrighted images, even when she requested them to do so. She asserted claims for secondary copyright infringement against Twitter, claiming Twitter induced, “caused or materially contributed to” users’ violations of her copyright. Pierson claims she gave Twitter notice of the infringing uses under the DMCA, but Twitter did not remove all of the infringing images.

The case was settled out of court and the photo in question has been removed from various other accounts not crediting Pierson. Whilst the detail of the settlement remain confidential, it seems reasonable to conclude that Twitter did receive advice that it may be liable, possibly because it did not discharge its duty of care with regard to the DMCA, and that the safe harbor provisions are not to be used as a blanket ‘get of jail free’ card.

Another similar case this year, another photographer, Jennifer Reilly, has alleged that, despite sending 28 notices of infringements to Twitter, 50 of the 56 infringing uses were not removed. Really is seeking actual and statutory damages and, at the time of writing the infringing photos appear to have been taken down, but whether Twitter acted ‘expeditiously’ or not remains to be seen.

The lack of action on Twitter’s part in relation to Pierson and Reilly seems to be an unnecessarily risky stance given that if Twitter wrongly removes content, it will not be liable, but the person or company who sent the takedown demand for DMCA misuse may be sued for damages and legal costs.

By contrast, YouTube takes no risks when it comes to the DMCA’S ‘safe harbor’ shield. In addition to removing content immediately on receipt of a takedown notice, YouTube has gone one step further and relies on Content ID, an automated system that scans all uploaded videos to check for any potential copyright infringement, and blocks any that it finds. It could be argued that the risks are heightened on a platform where Hollywood movies and other high-value content might appear, but the risk-averse approach of YouTube may be a sign of the future for other social media. Are the days of Facebook and Twitter vetting individuals’ posts on their way?

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