Intellectual Property Norms in Stand-Up Comedy
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Description
In this chapter, we examine the intellectual property norms of stand-up comics and how these norms help comedians assert ownership of their material and discourage joke stealing. Although joke stealing does not occur with great frequency, it does occur often enough to be a persistent concern. Nonetheless, comedians are not suing rivals who they believe have stolen their material. This is not because comedians are angels who object to litigation on principle. Nor do they view their work product as public property. Comedians work hard to come up with and perfect original comedic material and are not amused—to say the least—to see it stolen. Why are comedians not using the legal system? Copyright law does not provide comedians with a cost-effective way to protect their expression. The cost of federal court litigation is too high, and the expected benefits of copyright lawsuits are too low. Copyright law protects original expression but not ideas, and much alleged joke stealing involves telling the same comedic idea in different words. Copyright plaintiffs further bear the burden of proving that the defendant copied their expression rather than creating it independently. Since jokes and comedic routines often reference common experience or the events of the day, it would not be easy in many cases for comedians to negate the possibility of independent creation (also known among comedians as “parallel thinking”). Rather than formal law, comedians use a system of social norms to assert ownership of jokes and comedic routines, regulate their use and transfer, and impose sanctions on those who do not play by the rules. These sanctions include bad-mouthing, refusals to work together, and threats of (rarely used) physical violence. Documenting this norms system, which we have done by, among other things, interviewing comedians, is this chapter’s first major purpose. Part 1 thus contains a static description of comedians’ norms system as it operates today. This exploration challenges the conventional wisdom in intellectual property law—which has been repeated in the specific context of stand-up comedy—that formal legal protection is necessary for intellectual production to exist. Part 2 addresses the second major aim of our research. It provides a dynamic analysis of comedians’ social norms over time. In the vaudeville and the post-vaudeville eras, literal appropriation was the industry norm, and humor tended to stick to well-worn genres (mother-in-law jokes, ethnic humor, etc.). With the rise of antiappropriation norms in the 1950s and 1960s, humor has changed and become more personal, observational, and point-of-view driven. Our dynamic analysis leads us to two arguments. First, while conventional IP wisdom sees protection as mainly affecting how much creative work is produced, we suggest that it also affects the kind of content produced. In comedians’ case, the emergence of social norms did not bring about a greater supply of “rim-shot” jokes but rather a new kind of comedy. Second, we provide insight into why comedians’ proprietary norms emerged over the past half century. We trace and evolution in the culture and economics of stand-up comics, away from a regime that treated jokes as a commons and toward informal property rules that limit appropriation. We suggest that these are interrelated.
Source Publication
Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective
Source Editors/Authors
Mario Biagioli, Peter Jaszi, Martha Woodmansee
Publication Date
2011
Recommended Citation
Oliar, Dotan and Sprigman, Christopher J., "Intellectual Property Norms in Stand-Up Comedy" (2011). Faculty Chapters. 1743.
https://gretchen.law.nyu.edu/fac-chapt/1743
