Entertainment & Media Law Signal : Canadian Entertainment Lawyers for Licensing, Intellectual Property & New Media Matters

You can say that weaving through the system at the CMF can be a frustrating process, but you can't say the staff at the CMF aren't helpful. After coming across a question regarding the CMF's eligibility requirements for distribution fees and having difficulty in finding an answer on their website, a staff member with the CMF was more than willing to help me with my task. In fact, this staff member seemed almost excited at the prospect of helping me. I think the staffer's motivation came from the fact that I would become one less person confused about the new rules with the CMF and therefore, one less person inclined to call their offices for assistance.

Well, friendly CMF staffer - I've decided to help you out and pass on the information.

When submitting a distribution agreement for CMF's approval, if the distributor in question is taking a distribution commission of anything more than 15%, the distribution terms will be rejected. The CMF will only allow non-eligible distributors to receive 15% of revenues. So, in order to receive distribution fees in excess of 15%, one must either be an eligible distributor or a broadcast-affiliated eligible distributor. Distribution fees for such entities include 30% of gross revenues for television (conventional, pay) and 35% for television (syndicated).

According to the CMF, an eligible distributor must demonstrate the following to the CMF:

• A level of experience and expertise
• Sufficient volume of business and financial viability
• That it regularly attends international television markets
• That it has distributed productions of a similar size and nature
• That it is Canadian-controlled within the meaning of the Investment Canada Act (for the projects it will distribute in Canada)

According to the CMF, an eligible distributor affiliated with a broadcaster, may distribute a project if it meets certain requirements of the CMF and follows various "safeguards", which include the following: 

• The negotiation for traditional distribution rights are conducted separately from the negotiation for a broadcaster license fee
• There is a delay after the producer and broadcaster have completed a short form broadcast agreement and before the broadcaster-affiliated distributor and producer commence negotiations of a distribution commitment
• The broadcaster-affiliated distribution company is prohibited from accessing information from its affiliated broadcaster that would give it an advantage in negotiating with the producer.

Attached is the CMF Eligible Distributor questionnaire and checklist, which is used by the CMF to evaluate those distributors that want to be included on the CMF’s list of eligible distributors. It usually takes about 4 weeks for the CMF to review the form.

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A further development (see our earlier posts on the topic: Previews of Music as Fair Dealing and Previews of Music as Fair Dealing (Redux)) in the SOCAN v Bell Canada, et al case - where the Federal Court of Appeal recently held that "previews" of songs offered by online music services constituted "fair dealing" for the purposes of research.  SOCAN has filed a motion for leave to appeal the Federal Court's decision to the Supreme Court of Canada.  SOCAN's motion can be found here (hat tip: Sookman).  The Memorandum of Argument begins on page 104 of 133.

SOCAN's primary argument is subtle, one which trades on the enriching of the fair dealing defence prompted by the Supreme Court of Canada's decision in CCH v LSUC (2004 SCC 13).  In essence, the argument is premised on the notion that a purposive approach to interpreting fair dealing necessarily involves a taking a highly fragmented approach to that interpretive exercise; in short, the argument seems to be, if you want to understand whether a particular activity constitutes "fair dealing" you must investigate that activity with full immersion in its factual circumstances - and if you do that, then the notion that an online preview constitutes "research" in the sense that the Copyright Act is intended to facilitate falls apart.  Put a different way, the argument is that the finding in CCH arose in very particular circumstances, which don't translate to the online exploitation of music.   From paragraphs 7-9 of the Memorandum of Argument:

The Applicant submits that in finding that the actions of the Respondents constitute fair dealing, the Court below has created a very significant and unwarranted expansion in the scope of the defence. This expansion disrupts the balance between creators and users that the Act was intended to strike and results in the complete removal of the Applicant’s rights over a significant use of its music repertoire on the Internet in a manner that is incompatible with the object, spirit and purpose of the Act.

The defence of fair dealing is intended to further the central purpose of copyright law, that is, to strike a balance between the public interest in the creation and dissemination of creative works and the interest of creators in obtaining a just reward for their efforts. The Act imposes two conditions on the availability of the fair dealing defence: the dealing must be for an allowable purpose as enumerated by the Act and the dealing must be, in fact, fair. The allowable purposes listed in section 29 of the Act are “research and private study.” In light of the purpose of the Act, the use of music previews by the Respondents cannot be considered either research or private study and the volume of previews transmitted by the Respondents is too large to be considered fair.

The decisions below imperil the balance between protecting the interest of creators and promoting the development of creative works by expanding the definition of the term “research” to include activities that do not encourage the creation and dissemination of new works and by failing to consider the amount of the dealing in the aggregate.

Because any eventual Supreme Court decision in this case would be one of the first opportunities for the Court to authoritatively describe the contours of fair dealing following CCH v LSUC, whether Court agrees to hear the appeal, almost as much as the decision itself, will be important.

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The New York Times had an excellent article last week ("The Music-Copyright Enforcers" by John Bowe) (hat tip: Miri Frankel at The 1709 Blog) which explores the task and challenges facing performing rights organizations (the entities, such as SOCAN (in Canada), ASCAP and BMI (in the US)) which license the public performance of musical compositions.

During her five years with BMI — on trips to Texas, Ohio, Florida, Washington — Baker has learned a lot: managers of adult clubs tend to be polite. People who run coffee shops tend to be difficult. Skating rinks are a pain – they have the longest outgoing messages in the world. Casinos owned by Indian tribes are tough. Every decision goes to the tribal council, and it can take forever. Arts and crafts festivals, forget it; creative types never have any money. (“You’d think they’d get it,” Baker said, “But . . . .” She waved her hand.) The most important rule of the road, however, is never — Baker looked me in the eye — eat in the venue, even if they invite you. Because God only knows what they might put in your food.

... Once contacted by BMI, owners are given a worksheet. Does their venue use a radio, CD players, karaoke machine? Do they feature live music? If so, how often? How many people can the venue legally hold? For smaller businesses with low capacity that don’t make much use of music, a license may be as little as $300 a year. For really big operators, the cost might be as much as $9,000 per location per year, the maximum BMI is permitted to charge a single customer. (The fees are distributed to artists based on what BMI calls “an appropriate surrogate” — local radio or TV — that reflects a sampling of bars and restaurants in the area.)

... The excuses fell like rain. On the road, Baker’s client-management software offers her a list of common excuses — 24 in all — to keep track of what she’s told. But in the end, she knows it’s a game, a game she’s going to win. Because after all the phone calls, letters and visits, she possesses a secret weapon: the law. Whether or not a music user believes copyright infringement is a big deal, violators face fines of anywhere from $750 to $150,000 per song. If after several years, a violator refuses to back down, Baker ups the ante and sends what is known in-house as “the Larry Stevens letter,” named after one of Baker’s bosses, informing them that their case is being referred to BMI’s lawyers. Most but not all cases are settled out of court. That’s because in 51 years, BMI has never lost a single case it has tried.

The article is rich in that same sort of revealing background information and on-the-ground reporting, and is a treasure for anyone who's interested in how this area of the music industry functions.

As MIri Frankel's post on the article describes, PROs face (and have always faced) a reluctance on the part of some commercial music users to pay license fees for such uses - but that's nothing particularly unique, since many people would, in most cases, prefer to get something for nothing, as aptly illustrated by James Gannon in his post Independent PC Game Developers Experiment With TPM-Free Releases:

Some independent game producers have taken a different path. In order to provide their customers with a hassle-free experience, the independent makers of the World of Goo and Machinarium games each (separately) released their game free of any TPM – whether devices controlling access to the game or controlling the ability of the game to be copied. Unfortunately, these developers found very little success with thier “respect the consumer” strategies.

After the great World of Goo had been released for a few months, the developers reported that the piracy rate for the title was somewhere near 90%...

I still think that one of the best (and most concise) pieces on the challenges arising at the interface of, among other things, digital technology, "free" culture and basic economics is Andrew Potter's February 2008 article "No one likes to pay for music—or much else"; as Potter observes:

If you’re trying to square the notion of free culture with how the economy works, a handy rule of thumb is this: in the end, the consumer pays for everything. So when it comes to seemingly free media like radio and television, they are funded for the most part by commercial advertising, which is in turn paid for at the cash register by consumers. ... In the end, you get the culture you pay for, which is why the motto that everyone involved should be rallying around is “Free Lunch.” As in, there’s no such thing as a.

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Last week's news story about the FBI demanding that Wikipedia remove from its website a high-quality image of the FBI's logo offers a timely reminder of the need to obtain permission for the use of official logos and crests when conducting errors and omissions (E&O) reviews of film and TV productions.

E&O insurance policies will generally stipulate that permission is required for the on-screen depiction of the logo, crest or uniform of a government agency such as a police force.  The agencies themselves may have their own explicit policy stating that their permission is required for any such depiction - thus, for example, the US Department of Justice has a policy on seals, logos and other official insignia, and the LAPD has its own Entertainment and Trademark Unit which producers can contact.

As the KWIKA Entertainment Law Blog points out in the post Police Departments and Public Domain, US caselaw on the issue of whether government agencies have a protectable interest (be it copyright or trade-mark) in their logos is "surprisingly unsettled" - suffice it to say that Canadian caselaw is even more sparse (for purposes of comparison, I was unable to find any mention on either the RCMP website or the Toronto Police Service website of any contact information for reproduction of their respective logos).  And where the law is unsettled, E&O insurance providers are loath to tread: better safe than sorry is the guiding principle when it comes to obtaining (and issuing) E&O coverage.

As the Wikipedia entry for the film The Departed notes:

Martin Scorsese asked the [Massachusetts State Police] if he could use actual logos, badges, and color schemes on the uniforms and the cruisers, but was denied. As a result, the uniforms, police cruisers, and logos in the film are slightly different from the real ones.

General tip: when Martin Scorsese and Warner Bros. (the studio which distributed The Departed) aren't willing to run the risk of a claim based on infringing reproduction of a logo, other producers should probably shy away as well.

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The idea/expression dichotomy is fundamental to copyright law, and can be stated with relative ease:

“[I]n Canada, as in the United States, copyright protection does not extend to facts or ideas but is limited to the expression of ideas." (CCH v LSUC 2004 SCC 13 at para. 22)

That simple statement, however, hides an awful lot of conceptual and analytical depth: where is the line drawn between "idea" and "expression"?  As an example, we can easily conclude that the notion of a boy wizard attending a school for wizards and witches is not protected by copyright, but somewhere along the line between that skeletal concept and its formulation in Harry Potter and the Philosopher's Stone, it transforms from an unprotected "idea" to protected "expression".  How do we articulate where that line exists?

Academics and judges have long struggled with the dichotomy, which is particularly important in the entertainment industries, since imitation can sometimes be more valuable than innovation - if I have an idea for a show about vampires, at what point, if ever, do I need worry about treading on the copyrights of True Blood, The Vampire Diaries, the Twilight books or movies, Angel or any of more than the half-dozen Dracula movies which have been made?  Three of the best academic papers on trying to articulate the line between idea and expression are Allen Rosen's “Reconsidering the Idea/Expression Dichotomy” ((1992) 26 UBCL Rev 263), Carys Craig's “Resisting Sweat and Refusing Feist: Rethinking Originality After CCH” ((2007) 40 UBCL Rev 69) and Abraham Drassinower's "A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law" ((2003) 16 Canadian Journal of Law and Jurisprudence) (my own paper which touches on the idea/expression dichotomy, "'I’ve Got This Great Idea for a Show…' – Copyright Protection for Television Show and Motion Picture Concepts and Proposals" (2004) 17 Intellectual Property Journal 189, is available for download here). 

Learned Hand, when considering the idea/expression dichotomy in Nichols v Universal Pictures Corp., 45 F2d 119 (2d Cir 1930), opined that "nobody has ever been able to fix that boundary, and nobody ever can".  And yet courts are constantly called upon to try to identify what constitutes unprotected idea and what constitutes protected expression.  Two recent United States appellate court decisions provide further insight into how courts will (and should) attempt to meet the challenge.

In the 9th Circuit Court of Appeals decision in Mattel v MGA Entertainment (09-55673) (text of decision) (hat tip: Sookman), the dispute centred around a claim of copyright infringement asserted in respect of dolls: did the Bratz doll line infringe copyright held by Mattel in the iconic Barbie doll (an overview of the dispute, though from a couple of years ago, can be found in this BusinessWeek article).  The 9th Circuit articulated its analysis, before concluding that there was no copyright infringement, as follows [emphasis added]:

Mattel, of course, argues that MGA went beyond this by copying Bryant’s unique expression of bratty dolls, not just the idea. To distinguish between permissible lifting of ideas and impermissible copying of expression, we have developed a two-part “extrinsic/intrinsic” test. See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994). At the initial “extrinsic” stage, we examine the similarities between the copyrighted and challenged works and then determine whether the similar elements are protectable or unprotectable. See id. at 1442-43. For example, ideas, scenes a faire (standard features) and unoriginal components aren’t protectable. Id. at 1143-45. When the unprotectable elements are “filtered” out, what’s left is an author’s particular expression of an idea, which most definitely is protectable. Id.

Given that others may freely copy a work’s ideas (and other unprotectable elements), we start by determining the breadth of the possible expression of those ideas. If there’s a wide range of expression (for example, there are gazillions of ways to make an aliens-attack movie), then copyright protection is “broad” and a work will infringe if it’s “substantially similar” to the copyrighted work. See id. at 1439, 1146-47. If there’s only a narrow range of expression (for example, there are only so many ways to paint a red bouncy ball on blank canvas), then copyright protection is “thin” and a work must be “virtually identical” to infringe. See id.; Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003) (glass-in-glass jellyfish sculpture only entitled to thin protection against virtually identical copying due to the narrow range of expression). The standard for infringement—substantially similar or virtually identical—determined at the “extrinsic” stage is applied at the “intrinsic” stage. See Apple Computer, 35 F.3d at 1443. There we ask, most often of juries, whether an ordinary reasonable observer would consider the copyrighted and challenged works substantially similar (or virtually identical). See id. at 1442. If the answer is yes, then the challenged work is infringing.

... When works of art share an idea, they’ll often be “similar” in the layman’s sense of the term. For example, the stuffed, cuddly dinosaurs at issue in Aliotti v. R. Dakin & Company, 831 F.2d at 901, were similar in that they were all stuffed, cuddly dinosaurs—but that’s not the sort of similarity we look for in copyright law. “Substantial similarity” for copyright infringement requires a similarity of expression, not ideas. See id. The key question always is: Are the works substantially similar beyond the fact that they depict the same idea?  MGA’s Bratz dolls can’t be considered substantially similar to Bryant’s preliminary sketches simply because the dolls and sketches depict young, stylish girls with big heads and an attitude.

The 11th Circuit Court of Appeals also recently considered the idea/expression dichotomy, in Baby Buddies, Inc. v. Toys “R” Us, Inc. (08-17021 / 03-01377 CV-T-17-MSS) (text of decision) (hat tip: Exclusive Rights), a case involving two similar "bear-themed" baby pacifiers (the Exclusive Rights post has a photo of the two pacifiers side-by-side for ease of comparison). 

Equally fundamentally, “[i]n no case does copyright protection for an original work of authorship extend to any idea.” 17 U.S.C. § 102(b); see also Harper & Row Publishers, 15 Inc. v. Nation Enters., 471 U.S. 539, 556, 105 S. Ct. 2218, 2228, 85 L. Ed. 2d 588 (1985) (“No author may copyright his ideas or the facts he narrates.”). Accordingly, we must apply the substantial similarity test to only those elements of the copyrighted work that are actually subject to copyright protection—that is, elements of original expression in the copyrighted work. ...

In deciding whether the protected elements of two works are substantially similar, we compare the various components of the two works, but are mindful that “lists of similarities are ‘inherently subjective and unreliable, particularly where the lists contain random similarities, and many such similarities could be found in very dissimilar works.’” Corwin, 475 F.3d at 1251 (quoting Herzog, 193 F.3d at 1257). At the same time, “[a]nalyzing relatively amorphous characteristics of the [work] as a whole (such as the ‘mood’ or ‘combination of elements’) creates a danger of unwittingly extending copyright protection to unoriginal aspects of the work.” Leigh, 212 F.3d at 1215. At the most narrow, focused level, two works will almost always be distinguishable, and at the broadest level of abstraction they will almost always appear identical. Thus, although we identify and compare the protected expressive features of the two works, we do so not simply to count the number of similarities and differences, but rather to determine whether the work’s protected expression has been copied. ...

We begin with the plastic teddy bears, which are the most prominent features of both pacifier holders. As mentioned, both bears are formed from white, sculpted plastic. They also share the same basic anatomical features common to all teddy bears—a head, two ears, two eyes, a nose, a mouth, a torso, two upper paws (representing the fore paws of a real bear), and two lower paws (representing the hind paws on a real bear). But every sculpture of a teddy 17 bear shares these features simply because these features are what defines a teddy bear. To protect this basic combination of features would in effect give Baby Buddies exclusive rights over the very idea of a plastic sculpted teddy bear, which is expressly precluded under the copyright laws.

From there, the decision continues on to examine such elements of the bears as the positioning of the paws, the shape of the ears and the belly of the bears (pot belly vs a flatter torso - I swear I am not making this up...).

In addition to providing further examples of the nature of the analysis which US courts undertake, tThe decisions are notable from a Canadian perspective because of the highly formulaic manner in which the analysis proceeds: identify the elements of both works, separate out the protectable from the non-protectable elements, then compare the protectable elements to determine whether copying of a substantial part has occurred.  While that step-by-step approach is nascent in some Canadian cases (see my paper, linked to above, for its application in Canadian entertainment copyright cases), Canadian courts should regularize their analysis in a similar fashion so as to encourage the predictability of the infringement analysis.

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Stephen Zolf and I will be speaking this Wednesday in the Intellectual Property Institute of Canada / McGill University Business of Copyright summer course - our lecture will be taking place in Track 1 - Copyright in Entertainment and Publishing at 1:30pm.  We'll be speaking about copyright aspects of the film and television industries, with particular emphasis on structuring copyright ownership issues, the errors and omissions "clearance" process and the relevance of new electronic distribution models.  The full course brochure can be accessed here.

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Last week's promulgation by the United States' Librarian of Congress of a rule which creates an exemption for certain classes of works from the prohibition (in the US Copyright Act, first introduced by the Digital Millennium Copyright Act, or DMCA) against circumventing technological measures that control access to copyrighted works - which is rather a mouthful (or eyeful) - is noteworthy for a number of reasons which are of immediate relevance to Canadian entertainment lawyers and copyright enthusiasts.

First, the background (hat tip to Barry Sookman for providing a number of the relevant links): the US Copyright Office announced that it had made certain recommendations (here is the full text of the June 11, 2010 recommendation) to the Librarian of Congress regarding the Librarian's rulemaking power under the US Copyright Act, which recommendations had been accepted.   The DMCA modified the US Copyright Act to prohibit circumvention of certain technological measures employed by or on behalf of copyright owners to protect their works.  In particular, Section 1201(a)(1)(A) of the US Copyright Act provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  However, the DMCA also created, in Section 1201(a)(1)(B), a mechanism which permits the Librarian to make rules which modify the application of the prohibition by identifying particular classes of work whose users would be "adversely affected" by the operation of the prohibition in their ability to make non-infringing uses of the works in question.  In short, if the Librarian determines that the prohibition on breaking technological measures would unduly and negatively interfere with the ability of users to engage in non-infringing uses, then the prohibition could be circumscribed by a rule so as to eliminate that negative impact.

And that's precisely what the Librarian did last week (Statement of the Librarian; Determination of the Librarian and Text of the Regulation as set out in the US Federal Register). The Librarian determined that the fair use rights of documentary filmmakers were adversely affected by a strict prohibition on circumventing technological protection measures used on things like DVDs. 

That determination resulted in the following class designation [emphasis added]:  

"Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System [CSS] when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

• Educational uses by college and university professors and by college and university film and media studies students;
• Documentary filmmaking;
• Noncommercial videos."

In short, when someone circumvents CSS protection on a lawfully-acquired DVD for the purposes of incorporating a short portion of a motion picture into a new documentary film (or other non-commercial video) for the purpose of critiquing or offering commentary on that short portion, then that circumvention does not itself violate the US Copyright Act.

The explanatory notes of the Librarian in its Determination are of particular interest [emphasis added]:

"The justification for designating this class of works is that some criticism and/or commentary requires the use of high–quality portions of motion pictures in order to adequately present the speech–related purpose of the use. Where alternatives to circumvention can be used to achieve the noninfringing purpose, such non–circumventing alternatives should be used. Thus, this limitation seeks to avoid an overly broad class of works given the limited number of uses that may require circumvention to achieve the intended noninfringing end.

The class has also been limited to include only motion pictures rather than all audiovisual works. Because there was no evidence presented that addressed any audiovisual works other than motion pictures, there was no basis for including the somewhat broader class of audiovisual works (which includes not only motion pictures, but also works such as video games and slide presentations)."

Thus, only where the type of high quality image made possible by CSS circumvention is required can the exception be relied upon - for example, if using screen capture software to obtain a still image will suffice, then that must be used.  It is also worth noting that only motion pictures are covered by the class designation - if a videogame or slide presentation is protected by CSS, then the class designation cannot be relied upon.

Of even more importance is how narrow the exception is - the Librarian's commentary makes it clear that the class designation is intended to permit circumvention only for criticism or commentary of the motion picture itself [emphasis added]:

"What the record does demonstrate is that college and university educators, college and university film and media studies students, documentary filmmakers, and creators of noncommercial videos frequently make and use short film clips from motion pictures to engage in criticism or commentary about those motion pictures, and that in many cases it is necessary to be able to make and incorporate high–quality film clips in order effectively to engage in such criticism or commentary. In such cases, it will be difficult or impossible to engage in the noninfringing use without circumventing CSS in order to make high–quality copies of short portions of the motion pictures."

So the class designation is not intended to allow circumvention for the purpose of using the clip for offering a broader social critique (eg taking a clip from Avatar to emphasize the need for environmentally conscious development policies), or for the purpose of trying to illustrate some kind of historical development (eg taking a clip from Titanic to show the maturation of ship-building technology).

The Librarian was particularly emphatic on these points:

"there was no evidence in the record to support the conclusion that anything more than incorporating relatively short portions of motion pictures into a new work for purposes of criticism or commentary would be a fair use."

The announcement of the class designation resulted in a flurry of commentary, some of it focusing on the impact for US documentary filmmakers (Finally, a DMCA Exception for Documentary Filmmaking by Dan Nabel) and some focusing on the relevance of this change for Canadian copyright law (U.S. Move to Pick Digital Locks Leaves Canadians Locked Out by Michael Geist; Exit Strategy for Digital Locks Dilemma of Canada's Bill C-32 by Howard Knopf).  I think there are a few aspects of the Librarian's decision which are of particular relevance to the Canadian context:

First, the enviable power and flexibility which is accorded by the triennial rulemaking power of the Librarian of Congress.  That mechanism assists in keeping the US Copyright Act current, and thus not as susceptible to the ossification of the Canadian Copyright Act which only gets amended once every decade or so.  Bill C-32 (the Copyright Modernization Act) keeps alive the concept of a quincennial (just a great word, by the way) review of the Act by a Parliamentary committee (also found in the current Section 92 of the Canadian Copyright Act) - but the political realities of legislative copyright reform mean that actual modification of the Act would likely, as it has in the past, take place only on a much more telescoped time frame.  Fine tunings of copyright law may be better-served by a dedicated agency (such as the Copyright Board) rather than the blunt instrument of legislative committees.

Second, even in light of the Librarian of Congress' seemingly-far reaching powers, we should note just how incremental this type of change ends up being: what might at first blush seem like an expansive accommodation of documentary filmmakers' concerns is in fact a relatively narrowly-cast exception.

Finally, it will be interesting to see how the documentary filmmaking exception is interpreted by the US Courts - whether the prima facie breadth of the exception (ie covering all forms of commentary and criticism) will be "read down" in light of the Librarian's commentary (ie indicating that the exception is meant to address commentary and criticism of the motion picture being excerpted).  This bears on the point made by others - namely that the fact of the class designation itself should inform an assessment of Bill C-32 - since it will indicate just how flexibly and broadly the US fair use device will be in addressing the wants/needs of documentary filmmakers.

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Further to an earlier posting here at the Signal (Copyright In Jokes), Nathan Fan, writing at IPilogue, has penned a thoughtful piece on topic: Whose line is it anyway? IP Norms in Stand-Up Comedy.  Fan's piece also does a nice job of summarizing some of the norms identified in Dotan Oliar and Christopher Sprigman's "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy" (citation: 94 Va. L. Rev. 1787 (2008)).  Fan's final paragraph is particularly thought-provoking:

As communication technology continues to advance, there is a growing fear of having one’s perfectly crafted joke stolen.  First, the radio and television allowed a joke to be broadcast across a nation. Now with the use of YouTube and Twitter, a comic’s first performance could be posted to millions on the internet by the following morning. It seems that the stand-up community’s ability to self-police was at least partially due to its tribal, communal nature. All of the major acts know each other and cross each other’s paths. But with the ability of a joke to easily cross borders and cross oceans, such a self-policed system becomes much more difficult to employ. However, stand-up’s normative system has some hope of surviving as it could foreseeably utilize the Internet itself for its sanctioning purposes (e.g. YouTube is rife with videos alleging joke-thievery). Nonetheless, the stand-up comedy community has put a spotlight on the fact that some creative communities are being better served by informal normative regimes than by the traditional legal system. Perhaps other creative communities  can learn a thing or two from stand-up comedy.

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