Oliar & Sprigman on IP Norms & Standup
Dotan Oliar & Chris Sprigman (University of Virginia - School of Law) have posted The Emergence of Intellectual Property Norms in Stand-Up Comedy on SSRN. Here is the abstract:
In this paper, we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians against theft. Initially, jokes were effectively in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a norms-based IP system. This system serves as a stand-in for formal law, and regulates authorship, ownership, transfer, and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law's defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper.
Our study has implications for intellectual property theory and policy. First, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also the content of the work produced. Second, we suggest that the norms-based intellectual property system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Third, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community.
We acknowledge that stand-up's norms system presents both benefits and costs, which we detail in the paper. However, norms-based intellectual property systems offer an alternative cost/benefit bundle which in some cases may be superior to that of formal law. One attractive feature of IP-related social norms is that they offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying. In stand-up's case, the social norms system economizes on enforcement costs and appears to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.
And from the paper:
The major norm that governs the conduct of most stand-up comedians is a strict injunction against joke-stealing. Our interviewees agreed that appropriating jokes from another comedian is the major no-no in the business; many of our interviewees referred to joke-stealing as a “taboo”. This norm is so fundamental that a popular guide for new stand-ups, The Comedy Bible, puts the following as the first of its Ten Commandments to the novice: “Thou shalt not covet thy neighbor’s jokes, premises, or bits.”77 Other “how to” guides convey the same message.78 Our interviewees were adamant that instances of joke-stealing, and the confrontations that often follow them, are not very prevalent. From our interviews we got the sense that a comedian is unlikely to be a party to more than a very few confrontations in her entire career. When they occur, confrontations are, for the most part, brief, civil, and effective in putting an end to the dispute. Interviewees told us that recidivism is rare, and persistent joke-stealing is limited to a few bad actors who are identified as such in the community.
I loved this fascinating, well-written, and amusing paper--that also makes a very serious and important point. Highly recommended. Download it while its hot!
