Mencia, Rogan ignite hot debate in stand-up world

LOS ANGELES — So, these comedians walk into a comedy club, and a nasty dispute breaks out over who is stealing jokes. The audience laughs, but the comedians don't seem to find it funny at all.

The scene was the Comedy Store on the Sunset Strip earlier this year, and on stage were Carlos Mencia, the host of Comedy Central's "Mind of Mencia," and stand-up comic and "Fear Factor" host Joe Rogan. Mencia let it be known he was upset that Rogan had been mercilessly bashing him as a "joke thief" and derisively referring to him as Carlos "Menstealia."

As the crowd whooped and hollered, Mencia fired back at Rogan: "Here's what I think. I think that every time you open your mouth and talk about me, I think you're secretly in love with me. ... "

A video of the raucous encounter soon appeared on various Web sites, igniting a debate over joke thievery that is roiling the world of stand-up comedy.

An earlier generation of comics was self-policing, careful about giving credit, often adhering to an unwritten code: Any comic who stole another's material faced being shunned by his peers. Now, the competition is so much greater and the comedy world so decentered that old taboos about joke theft seem to be breaking down. That, in turn, has led to an outbreak of finger-pointing among comics that some say is starting to smack of McCarthyism.

Still, for a comic convinced that his material has been ripped off, it's no laughing matter.

"You have a better chance of stopping a serial killer than a serial thief in comedy," said comedian David Brenner. "If we could protect our jokes, I'd be a retired billionaire in Europe somewhere — and what I just said is original."

Bill Cosby, who has had his own material ripped off over the years, said he empathizes with comedians who are being victimized by joke thievery.

"You're watching a guy do your material and people are laughing, but they're laughing because they think this performer has a brilliant mind and he's a funny person," Cosby said. "The person doing the stealing is accepting this under false pretenses."

Bobby Kelton, a stand-up veteran who appeared nearly two dozen times on "The Tonight Show Starring Johnny Carson," said that when he started out in the business, fellow comics such as Jay Leno, Billy Crystal, Jerry Seinfeld and Richard Lewis all knew the rules.

"No one dared use another's material," Kelton said. "If they did, the word would get out and you'd be ostracized. ... Then, as the comedy boom hit and tens of thousands of people got into comedy, that all kind of went out the window."

The joke's on YouTube

To be sure, joke theft went on even during those golden years. The late Milton Berle was famous for pilfering other comedian's jokes.

"His mother used to go around and write down jokes and give it to him," recalled Carl Reiner. "He was called 'The Thief of Bad Gags.' " Reiner said that in those days, comedians would work on different club circuits, so it was possible that they didn't know when someone was stealing their routines.

Today, however, Web sites such as YouTube post videos comparing the routines of various comedians, inviting the public to judge for themselves.

One example is a comparison of three comedy bits on Dane Cook's 2005 album "Retaliation" and three similar routines on Louis C.K.'s 2001 CD "Live in Houston."

Louis C.K. jokes: "I'd like to give my kid an interesting name. Like a name with no vowels. ... just like 40 F's, that's his name."

Now compare that with Dane Cook's material: "I'd like to have 19 kids. I think naming them, that's going to be fun. ... I already have names picked out. First kid — boy, girl, I don't care — I'm naming it 'Rrrrrrrrrrrr.' "

And both scenes might seem familiar to fans of Steve Martin, who did a bit decades earlier called "My Real Name," in which he uses gibberish when recalling the name his folks gave him.

"Does this mean Louis C.K. and Dane Cook stole from Steve Martin?" Todd Jackson, a former managing editor at the humor magazine Cracked, writes on his comedy blog (www.dead-frog.com).

"Absolutely not. This is a joke that doesn't belong to anyone. It's going to be discovered and rediscovered again and again by comics, each of whom will put their own spin on it."

Radar magazine, in a recent article about joke thievery among comics, called Robin Williams a "notorious joke rustler" who is known to cut checks to comedians after stealing their material.

Williams declined to comment for this article.

Pierce O'Donnell, a Los Angeles attorney who is writing a book on humor, said it's difficult for comedians to legally claim copyright protection of a joke.

"Let's be honest, how many times have you heard over the course of time the same joke from different people?" O'Donnell said. "Humor is kind of universal, and copyright laws want to promote creativity."

Robert Cumbow, a Seattle attorney whose practice focuses on copyright and trademark law, added: "Copyright law does not protect ideas, it only protects the specific expression of an idea." However, he noted, "If I make up a joke and you come along with a version of that same joke, unless your telling of the joke is dramatically different, I probably have a claim."

Crossing a line

One comic who claims ownership of a well-worn joke is Ari Shaffir, a comedian known for his provocative material. Shaffir said he originated a joke about building a wall at the U.S.-Mexico border to keep out undocumented immigrants.

His joke goes: "Did you hear that America wants to put up a 10-foot-high brick wall like 5 feet deep so no Mexican can get in? Now, who do you think is going to build that wall?"

Shaffir concedes that other comics may have come up with their own version of the joke independently, but he is not so forgiving of Mencia.

Shaffir, who joined Rogan in confronting Mencia over joke stealing at the Comedy Store, contends he came up with the "who will build the wall?" joke around 2003, when Arnold Schwarzenegger was first running for California governor and the issue of building a border fence was in the news. Shaffir said he subsequently told his joke at various comedy clubs around Southern California, including the Ice House in Pasadena, where Mencia was the headliner.

"I saw him in Pasadena looking at me doing the joke," Shaffir recalled.

Mencia denies stealing the joke. In an e-mail to the Los Angeles Times, he wrote: "I don't know what goes into the motivation, but of all the comedians having done that joke, I am the only one being accused of stealing it by Ari."

Jackson, on his Dead Frog comedy blog, has posted videos of comedians Shaffir, Mencia, George Lopez and D.L. Hughley all doing variations of the border-wall joke. "I think Ari is a great comic," Jackson said. "I like his work, but it seems his allegations are impossible to prove."

More difficult to defend, Jackson said, is a March 2006 routine by Mencia on "No Strings Attached," which is similar to one Cosby performed in 1983 on Bill Cosby "Himself." The routine involves a dad who does everything to make his son into a great football player, but at the moment of his son's greatest gridiron victory, the son looks into the TV camera and goes: "Hi, mom!" In Mencia's routine, the son says: "I love you, mom!"

Mencia said it made him "uncomfortable" when he viewed the Cosby video. "I had never seen Bill Cosby tell that joke until after my special," he wrote in an e-mail. "I wish I had seen Cosby tell it, because if I had, I would have found another way of making my point since that joke was part of a much larger premise that I've been doing for years about women raising children."

Mencia claims he also has been a victim of comedians lifting "my entire comedy persona." He added: "We are all influenced by someone, and as far as those specific comedians are concerned, I am glad I influenced them."

Just as Mencia has been placed on the defensive, so has one of his accusers. After his Comedy Store confrontation with Mencia, Rogan said, he was banned from performing at the club and was dropped by his agents at the Gersh Agency. Mencia, a Gersh client, denied pressuring the agency.

Rogan said comedians come up to him and "grab my hand and shake it and say, 'Thank you for what you did.' " But Rogan also has his fierce critics, who view him as a publicity seeker.

"My routines are my own; they come out of my own imagination," Rogan said in an e-mail to the Times. "I certainly have been influenced by comedians I admire, but there's a huge difference between being influenced by someone and stealing their material."