Comedy goes legal: Safeguarding stand-up comedians through IP rights in Bangladesh

Lord Chesterfield once said, "Good humour is the health of the soul." But it is hard to find moments of laughter amidst our stressful lives. Amid exam stress, deadlines, traffic and high prices, we always seek relief, and stand-up comedy has become a way to unwind and forget about the stresses and anxieties of our lives. 

Stand-up comedy is still in its budding stage in Bangladesh. But it is gaining momentum gradually, especially among the youth. Comedians such as Naveed Mahmud, Ahmed Ashik and Amin Hannan Chowdhury are working hard to build the stand-up comedy industry in Bangladesh. 

Many comedians are even taking stand-up comedy as their profession. However, joke theft is a major issue in the stand-up comedy industry. Many people use materials from a comedian without permission, credit or compensation. It goes against the core values of creativity, originality and authenticity, which are crucial to this art form. 

The stand-up comedy industry and comedians may need legal recognition and safeguarding. In that case, the question remains whether obtaining copyright protection for stand-up comedy under the Copyright Act, 2000 in Bangladesh is feasible.

The popularity of stand-up comedy and social media has led to a rise in joke theft, which presents a paradox for comedians. Social media can boost and damage a comedian's career since a joke's value lies in its originality and surprise, which diminishes each time it is heard.

The issue of joke theft has led to legal battles in some cases in the United States. For example, in Foxworthy v. Custom Tees (1995) case, Jeff Foxworthy, a comedian famous for his jokes beginning with "You might be a redneck if...", sued Custom Tees, a T-shirt company, for using his jokes on their T-shirts without permission. A U.S. district court ruled that Jeff Foxworthy's combination of words was a unique expression that qualified for copyright protection, even though the format of the jokes had been altered. 

Again, in the Kaseberg v. Conaco, LLC (2018) case, Robert Alexander Kaseberg sued Conan O'Brien, his production company and his writing team for copyright infringement, alleging they used five of his jokes on their show. The jokes were based on public news events and ended with a punchline. Another U.S. district court held that the jokes in question had only limited copyright protection because they were constrained by their subject matter and the conventional two-line setup and delivery format. 

To obtain copyright protection for jokes and prevent joke theft, it is necessary to establish whether stand-up comedy is covered under copyright law. However, the copyrightability of stand-up comedy remains a relatively unexplored issue within the field of intellectual property law, making it an emerging issue within the negative space of the intellectual property domain. 

In Bangladesh, the Copyright Act, 2000 recognises three categories of works eligible for copyright protection under Section 15. These are – (a) original literary, dramatic, musical and artistic works, (b) cinematograph films and (c) sound recordings. 

Stand-up comedy may be considered an original literary, dramatic or artistic work. In that case, jokes can potentially be protected under copyright law as literary works, but this approach is not commonly used. 

Usually, comedians write and develop their jokes on various media, such as notepads, notebooks and laptops, to prepare for their live performances. As this writing process involves a literary exercise, jokes written down could potentially be eligible for copyright protection as a form of literary work. 

In Eastern Book Company and Ors. Vs. D.B. Modak and Ors. (2007) case, the Indian Supreme Court ruled that a work does not necessarily need literary merit for copyright protection. Rather, the court considers whether the skill, labour and capital invested in creating the work are significant and not trivial. 

Another potential avenue for protecting stand-up comedy from intellectual property infringement is copyrighting it as a dramatic work. Given its live nature and reliance on performance elements such as speech, pacing, movement and physical gags, stand-up comedy could potentially be eligible for such protection. 

In Agence France Presse vs ADIT (2014), the income tax appellate tribunal determined that a work is eligible for copyright protection if it exhibits a minimum level of creativity that involves significant amounts of skill, labour and capital. 

Again, stand-up comedy may also be protected under the Copyright Act, 2000 as an artistic work since it falls under the broad definition of artistic work outlined in section 2(36) of the Act, which encompasses any work of artistic craftsmanship. According to art historian Thomas Munro's definition of art, stand-up comedy meets the criteria of art by requiring skill to create an aesthetic experience, convey experiences through humour and perform in a way that generates laughter from the audience.

However, obtaining copyright protection for jokes may be challenging due to some legal and practical barriers. Copyright law protects the expression of an idea, not the idea itself. The Bombay High Court ruled in the case of Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt. Ltd. and Another (1999) that copyright protection is not granted to an idea but to the specific expression in which the idea is conveyed. 

As the same idea can be expressed differently, comedians can lawfully appropriate and present the idea behind a joke differently. Again, for a joke to be protected by copyright, it must be fixed in a tangible medium of expression. 

However, the nature of stand-up comedy makes this requirement challenging, as many acts do not need to be fully scripted and involve audience interaction. Additionally, practical obstacles such as cost, delay and procedural complexity may discourage comedians from pursuing copyright protection for their jokes.

Joke theft on social media is a rising concern that threatens the stand-up comedy industry. Although copyright law is imperfect, it can safeguard comedians' financial and creative rights. 

However, more often than not, comedians prefer not to take legal action to enforce their copyright. Instead, they rely on a norm system that penalises joke theft. However, this norm system is not as effective in regulating joke theft on social media. 

Integrating copyright law with industry norms may boost innovation and originality in stand-up comedy. To make their jokes less prone to copying, comedians can prioritise investing in textual originality and creating unique jokes.

The congested city areas and limited entertainment options in Bangladesh have paved the way for stand-up comedy to emerge as a viable source of entertainment for the urban population. This industry has already established itself as a popular entertainment option in neighbouring India. 

The stand-up comedy industry's economic value is rapidly expanding worldwide. The US industry alone is projected to reach $321 million by 2023. The popularity has much to do with the industry's ability to connect with younger generations through humour and raise awareness about social issues. 

Legal recognition and copyright protection are crucial for the sustainable growth of the stand-up comedy industry in Bangladesh. By encouraging original and quality content, legal recognition can create a thriving stand-up comedy culture in Bangladesh, benefitting both comedians and audiences.

Mohiuddin Alamgir Shoaib is an Intern of the research wing at A.S. & Associates and a final year LLB (Hons) student at the University of Dhaka.  

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.