There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy

Article — Volume 94, Issue 8

94 Va. L. Rev. 1787
Download PDF

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 effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims 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 lack of legal protection for intellectual labor does not entail a market failure by necessity, as social norms may induce creativity. Second, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also its kind. Third, we suggest that comedians’ IP norms 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. Fourth, 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. Lastly, social norms 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. 
Stand-up’s norms system has both benefits and costs, which we detail in the paper. However, norms-based IP systems offer an alternative (or supplementary) cost/benefit bundle which in some cases may be superior to that of formal law alone. In stand-up’s case, norms economize on enforcement costs and appear 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. 

_________________________________________________

This article produced a number of responses. To read more:

Does Equity Pass the Laugh Test? By Henry E. Smith

Who’s in the Club? By Katherine J. Strandburg

Custom, Comedy, and the Value of Dissent By Jennifer E. Rothman

Of Coase and Comics, or, The Comedy of Copyright By Michael J. Madison

The authors respond:

From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create By Dotan Oliar & Christopher Sprigman

 

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 94 / Issue 8  

There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy

By Dotan Oliar and Christopher Sprigman
94 Va. L. Rev. 1787

The Uneasy Case for Transjurisdictional Adjudication

By Jonathan R. Nash
94 Va. L. Rev. 1869

Authority and Authorities

By Frederick Schauer
94 Va. L. Rev. 1931

San Antonio Independent School District v. Rodriguez and Its Aftermath

By Jeffrey S. Sutton
94 Va. L. Rev. 1963