The Fat Jew, Plagiarism and Copyright Law; Forbes, 8/24/15

Oliver Herzfeld, Forbes; The Fat Jew, Plagiarism and Copyright Law:

"What are the differences between plagiarism and copyright infringement?

First, plagiarism is a violation of ethics and industry norms that involves the failure to properly attribute the authorship of copied material, whereas copyright infringement is a violation of law that involves the copying of “original works of authorship fixed in any tangible medium of expression,” without a license or a so-called “fair use” exemption. So claims of plagiarism would apply to any joke even if it is only conveyed in a live performance that is not recorded, while copyright infringement would not apply to any such jokes that are never recorded or published in any way. Exposure to claims of copyright infringement would only apply to jokes that are written down, captured on film or memorialized in some other physical medium, whether paper, video or computer server.

Second, plagiarism applies to the copying of both ideas and the expression of ideas, while copyright law only protects the expression of ideas but not the ideas themselves. The copyright law’s so-called “idea/expression dichotomy” can lead to a lot of thorny issues. For example, if a comedian changes the words of another’s joke and puts it into her own words, is that a copying of only the “idea” which would not constitute a copyright infringement or a “substantially similar” copying that would constitute a copyright infringement? This has led to an informal standard in the world of comedy, namely, claims of joke copying must be based on material that is highly original, not simply topical, obvious or based on common denominator topics such as mothers-in-law, bosses or airline food. In this case, however, Ostrovsky is accused of copying others’ works lock, stock and barrel. For example, in one instance, Ostrovsky copied another comedian’s image of a daily planner with time blocked off for “drugs and alcohol” and other humorous scheduled items. Ostrovsky deleted the name, social media handle and face of the author from the image but made no effort to recreate it, rephrase the wording or otherwise alter the expression of the original idea in any manner."