Dotan Oliar and Christopher Sprigman’s There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy is one of a small number of recent case studies that supply relevant data. The major virtue of this work is that it does for the premise of Anglo-American intellectual property law what Ellickson did for Coase. It moves the discussion from theory to practice. Does intellectual property law supply incentives to produce and distribute creative goods? In some salient contexts, the answer is “no” or, at least, “not so much.” Oliar and Sprigman argue that stand-up comedians are creative and productive folks who live by a system of social norms, rather than by a system of intellectual property law.
Not only does this comic code encourage creativity, it also apparently has something to do with comedy itself. Along with an Ellicksonian tale of norm-based social ordering by a group (not an Ellicksonian close-knit group, but an identifiable loose-knit group), Oliar and Sprigman tell a related and partially Demsetzian story of the evolution of these norms. Comedy once was a commons, but social norms privatized its contents.
Here, I focus on what There’s No Free Laugh teaches other scholars. The challenge posed by Ellickson looms large. Ellickson went to Northern California looking for Coasean transactions, found something closer to the Balinese cockfight “thickly” described by Clifford Geertz, and had the humility to write up what he found: a combination of economics and culture. How might Oliar and Sprigman’s study form the basis for equally rich follow-on scholarship? The important lessons here may be partly what a thick version of law and economics can teach intellectual property law, and partly what a thick account of culture can teach law and economics.