The Vigilantes of Comedy: A Guest Post

Kal Raustiala, a Professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a Professor at the University of Virginia Law School, are?counterfeiting and intellectual property experts. They have been guest-blogging for us about copyright issues; this week they write about an alternative method of enforcing intellectual property rights.

The Vigilantes of Comedy
By Kal Raustiala and Chris Sprigman

Late one Saturday night in February 2007, a stand-up comic named Joe Rogan decided to take the law into his own hands.? Rogan, a well-known comedian, was on stage at The Comedy Store in Los Angeles, one of the nation’s most important comedy clubs.? For weeks, Rogan had been furious over reports from fellow comedians that an even more famous stand-up, Carlos Mencia, had stolen a joke from one of Rogan’s friends, a relatively obscure comedian named Ari Schaffer.? Rogan spotted Mencia in the audience, and he blew up.? Slamming Mencia as “Carlos Menstealia,” Rogan accused his rival of joke thievery.? Mencia rushed the stage to defend himself, and there began a long, loud, and profane confrontation.

The Rogan/Mencia blow-up was caught on video, and quickly went viral (caution: extreme language). In the course of a rambling, high-volume duel of insults, Rogan laid out the details of Mencia’s alleged stealing.? Mencia angrily denied stealing, and shot back that Rogan was a “whiny [expletive]” motivated by jealousy. Eventually, Ari Schaffer himself jumped on stage to support Rogan. The audience divided into camps, with most supporting Rogan. The possibility of violence hung in the air.

Eventually, the comics left the stage, but that didn’t end matters.? Rogan continued to press his case in radio interviews, and in the following weeks a number of other comics joined the feud, most siding with Rogan. Rogan also posted a clip on YouTube citing examples of what he took to be Mencia’s thievery.? Several versions of this short video have been viewed more than five million times.

The last number should catch your attention.? Five million views for a video of a public argument between two comedians.? What’s going on here?

At first glance, this may seem like a nasty but ultimately meaningless showbiz feud.? But it’s more than that. In fact, Rogan’s decision to confront Mencia is an example of what stand-up comedians do all the time.? Comedians have rules of their own about joke-stealing.? And they impose their own punishments on thieves.? The Rogan/Mencia incident was different in one way, however – it was public.? Typically, comedians enforce their private rules behind closed doors.? But whether public or private, comedians’ determination to deal with joke thieves directly and informally, rather than resorting to the law, is noteworthy.

Why do comedians do this?? In part, because they live in a world where intellectual property law – in particular, copyright – does not help them much when a rival comedian steals a joke.? In theory, copyright law applies to jokes. But in the real world, lawsuits are simply too expensive and uncertain to work as an effective response to joke stealing.? Comics don’t see the benefit in spending tens or even hundreds of thousands of dollars as a response to a rival’s lifting of a joke – even a very good one.? And even if a comic were angry enough to be tempted, there is a daunting legal barrier to a successful suit. Copyright protects original expression, but not underlying ideas.? But often a great joke is built on a funny idea, which can be expressed in more than one way.? So comics who “re-write” others’ jokes rather than simply appropriate them wholesale are, as far as current copyright law goes, perfectly safe.

For these practical reasons, comedians do not use copyright to protect their material. But that does not mean that stand-up comics are blasé about joke thievery.? Today’s comics are intent on enforcing ownership rights. Yet they do so via social norms – informal but nonetheless powerful rules enforced by comedians on their peers.? Comedians provide a fascinating picture of how some creative communities depend on informal rules of conduct, rather than legal rules, to maintain adequate incentives to create new work.

What do we know about these norms?? Last year one of us (Sprigman) and his colleague Dotan Oliar published a paper documenting the phenomenon. The paper is based on many interviews with comedians, where they laid out their views about joke ownership, joke stealing, and what comedians do when they believe that a fellow comic has lifted a bit from them. Comedians maintain a small list of commandments that every comic must follow – or risk being ostracized, boycotted, and sometimes worse.? These norms track copyright law at times: for example, the major norm is one against publicly performing another stand-up’s joke or bit. More often than not, however, the norms deviate from copyright: for example, copyright protects expression but not ideas, but comedians’ norms protect expression as well as ideas. Or authorship: under copyright law, two individuals who cooperate in creating a work are considered joint owners of the work. In contrast, if one comedian comes up with a joke’s premise and another thinks up the punchline, under comedians’ norms of ownership the first owns the joke and the latter has nothing.

Importantly, comedians’ norms are not just “suggestions.” They also include informal but powerful punishments. These start with simple badmouthing and ostracism. If that doesn’t work, punishments may escalate to a refusal to work with the offending comedian – which can keep the accused joke-thief off of comedy club rosters.? Occasionally, punishments turn violent. None of these sanctions depend on the law – indeed, when comedians resort to threatening or beating up joke thieves, that’s against the law.?? That said, although both the rules and the punishments are informal, they are effective.? Within the community of comedians, it hurts to be accused of stealing a joke.? In some cases, repeat accusations may destroy a showbiz career.

What does this all mean?? The story of stand-up tells us that, just as in the fashion world we have described in other posts, the law is not always necessary to foster creativity. Using informal group norms and sanctions, comedians are able to control joke-stealing. Without the intervention of copyright law, comedians are able to assert ownership of jokes, regulate their use and transfer, impose sanctions on joke-thieves, and maintain substantial incentives to invest in new material.

This presents a challenge to the conventional economic rationale for intellectual property rights. Absent legal protection, the usual theory goes, there will be too few creative works produced — authors and inventors would be unlikely to recoup their cost of creation, so they won’t bother creating in the first place. As we have described, there is no effective legal protection against joke theft. Yet thousands of stand-ups keep cranking out new material night after night. In the absence of law, we find anti-theft norms providing comedians with a substantial incentive to innovate.? Which leads to an important and fascinating question: Where else might creativity norms effectively stand in for legal rules?


Tzimiskes

Weren't social norms pretty much the normal means of enforcing standards of conduct, economic or otherwise, right up until modern times? Shouldn't conventional economic rationale always have had social norms incorporated into it as the normal way of enabling cooperation with modern forms being the exception to a well established historical rule?

Saif

The conclusion of this post seems to contradict the anecdote that prompted it. The authors argue that social norms among comics are an effective tool for the protection of intellectual property rights and the fostering of creativity. There's clearly a flaw in the system, however. Carlos Mencia, an unfunny joke-thief, was allowed to become very popular and financially successful.

If social norms were sufficient to prevent this type of behavior, this conflict shouldn't have needed to become public. As it is, Mencia's career has taken him from the stand-up circuit to television and film. Does this indicate that, in the absence of sufficient negative feedback in a world of mixed and expansive media, the social norms system is susceptible to gaming and subversion? Or does it simply mean that one unfunny and unoriginal comic slipped through the cracks of an otherwise solid system?

cs

Joe Rogan may be well known, but he IS NOT a comedian.

David Chowes, New York City

MR. TELEVISION

Milton Berle was most popular comedian during the 1950's. His show probably sold more TV's than anyone else.

He was/is known as the greatest stealers
of jokes. If when he was alive there were copyright restrictings on a comic usurping jokes from others he would have died in jail -- having been given a sentence longer than Bernie Madoff.

What did happen? He and his fellow comedians used his
'thievery' just made jokes about it and laughed.

David L

Ok I'm not arguing for or against IP reform here. But compared to, say, a new drug, or even a piece of software, a joke has both a negligible cost to develop and, on a one-off basis, a very small benefit to the stealer (there are maybe a handful of jokes EVER that have, by themselves, had a measurable impact on a comedian's career--"I prefer syrup!").

Because of this fact, it doesn't take much of a disincentive to dissuade would-be joke stealers. For a couple of extra laughs, you would rather spend a few minutes writing your own joke than steal someone else's and be subjected to even a LITTLE bit of derision. Not so with most meaningful IP. If you spend years, possibly decades, and millions or hundreds of millions of dollars creating a new technology that addresses a multi-billion dollar market opportunity, you need a little more than the threat of peer disapproval to protect your investment--otherwise, you never would have made the investment in the first place, and a major problem would go unsolved.

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JamesV

"But compared to, say, a new drug, or even a piece of software..."

Those are things that would be covered by patents, which are a different kettle of fish, but a kettle that also nowadays is being spoiled.

Someone stole your joke? Tell it better, and write some new ones while you're at it. Considering that copyrights were intended to give people incentive to create, the idea of genuine competition and the chance of being copied would be, in my mind a far greater incentive to be innovative, than to sit on on the same-old jokes about airplane food and suing anyone who gets close to making the same jest.

Brian McKim

"Someone stole your joke? Tell it better, and write some new ones while you’re at it."

Spoken like someone who has never written a joke or had one stolen from him.

The above is the exact rationale that many joke thieves employ.

No surprise the author of the comment also makes reference to "the same-old jokes about airplane food." He makes little effort to hide his contempt of comedians. And his cavalier attitude toward their output and it's theft signals his utter lack of respect for comedians.

I was quoted a few times in the paper written by Oliar and Sprigman, by virtue of having created (along with my wife, who is also a professional comedian) an online magazine about standup comed, SHECKYmagazine.com. We've explored this issue and others over the past 13 years and we agree with many, if not all, of Sprigman's conclusions. Mencia and Berle don't disprove their theory.

Another thing (that I don't believe was covered by the scholars) is pride. There is an intense desire to be original among the vast majority of standup comics. So much so that we might drop a joke if we even suspect that it might be too similar to one that's done by someone else. Of course, not all comics have this desire, and some of them become successful. But the majority of those who've become successful are scrupulously original.

JamesV's inherited his tired and cliched view of standup comics from the mainstream media, who has tirelessly sought to portray comics as hacks. Since April 1999, we have taken the media to task on this point. We like to think we've had some effect on them. Sadly, some of their more vicious memes have burrowed into the lazy gray matter of some folks.

Loved "Freakonomics," by the way.

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Tucker

It seems pretty clear that the social controls to protect joke writers in comedy isn't a particularly strong regime and is in many ways inferior to formal sector protection. I think there are still a few reasons that there are still plenty of jokes produced, primarily that lack of protection isn't as much of a dissuasion from production of jokes. Jokes are marginally very cheap to produce, really the trade-off is in wages foregone when the writer was creating it.

There are lots of instances where a weak socially organized regime for protection of all kinds of property replaces a strong legal regime. The fact that this is intellectual property that is inexpensive to produce just means that there hasn't been a strong enough incentive for the state to create a strong legal regime to foster greater production of this type of intellectual property.

keith

The enforcement mechanism relies on the comedians having enough power over venues and booking agents to punish a transgressor. If the comedians don't have this power, then the enforcement mechanism is simply gossip.

Laconophilia

Joe Rogan IS a comedian, and personally I find him rather entertaining-although not particularly funny.

There wasn't much possibility of violence...Joe Rogan is a trained marshal artist and would have absolutely destroyed Mencia (who is even less funny and does steal jokes).

YuckYuck

Comedians have been buying jokes from other comedians and writers since the first comic stood up on a rock.. There is no stigma against a comedian doing material he didn't write, as long as he paid for it.

This leads us to believe it is a respect issue. The no-name comic wouldn't be so mad that a popular comic did his material on HBO, as long as he paid the $30 or so back when the popular comic first heard the joke and wanted it in his act. Or at least ask for permission to do the joke.

There are a lot of really good comedy writers that sell great jokes on the cheap. But it's the performer that truly sells the joke to the public.

In almost every case, the performer will become more famous than the writer of a creative work. SNL writers don't make as much as the performers. The most talented song writers don't do as well as the most talented singers. And on and on it goes.

Folkman

Which prime time legal or investigative series on TV will steal this story and base a murder on the stealing of jokes among comedians? Since it's so late in the programming year, I guess we'll have to wait until fall to find out.

Justin

Milton Berle got a laugh out of it from fellow comics.

Mencia got nailed by Joe Rogan.
Dane Cook rips off every comic on the planet.

The worst recent offender?

Denis Leary basically became famous by copying Bill Hicks material word for word while he was dying.

Ripping of a comic dying of cancer? That is probably the lowest form of life on the planet.

John

Joe Rogan's feelings on joke stealing is well known. He sided with Bill Hicks on the infamous Denis Leary Vs. Bill Hicks controversy

http://en.wikipedia.org/wiki/Bill_Hicks#Hicks_and_Denis_Leary

Clearly the shunning of the offender doesn't persist after the victim though, given that Leary seems to be doing quite well for himself.

Kip

So the joke that Mencia is accused of stealing, at least in that clip, is basically that Mexicans would have to be the ones to build a US/Mexico border fence? That's completely unoriginal. That was one of *my* first thoughts when I heard discussion of a border fence. Maybe there is other evidence that he steals jokes, but that particular joke is way too obvious for anyone to claim ownership. It's as ridiculous as Amazon's patent claim on "one-click" buying.

Maurits

There's something ugly out there.
1) The law protects some intellectual property but not other. Some of the other intellectual propoerty is defended by social norms.
2) Normally intellectual property rights benefit the owner by keeping supply low and prices up
3) When social norms are used to keep supply down and prices up, as they often do when suppliers know each other well, these markets become more or less cartelized. Whether law enforcement can act upon this depends on law & jurisprudence and enforcement priorities.
4) So what do we have here: intellectual property rights that are meant to be enforced or non-rights that should therefore not allow comedians to cartelize the market thru social norms (especially n the expression side, the comedians seem off limits).

Paul

So what the authors seem to be saying is that monoplistic rights don't need to exist to foster creativity. Amazing, I always thought monoplies were good, and fostered competition, creativity and innovation.

Guess I better go gt my economics degree again.

Luke

Mencia's most blatant thievery is of Cosby's football joke.
http://www.youtube.com/watch?v=lCixAktGPlg

Mike B

The problem with the whole "social norms" thing is that there exists no due process right to ensure that the punishment is being metered out in a fair an just manner. Instead of evidence being presented and an impartial hearing you get warring camps that take sides and once invested become impervious to any form of further persuasion.

I think the market structure for jokes naturally solves any problem of theft in terms of the creation of new jokes. If jokes are not fresh, the market will not demand them, stolen or otherwise. The loss of value occurs when an audience hears a joke its already heard. In theory the risk of this happening should be about equal for the thief and the victim where audiences overlap and thus the thief should be punished as much as he is rewarded and this have no incentive to steal.

Where the thief experiences a benefit, the problem lies in the victim under exploiting his humor in the window of time before it can be appropriated by another and therefore the solution is to saturate the market quickly to achieve maximum joke exposure and render theft attempts worthless. This provides a net benefit for consumers as they are then exposed to a greater amount of jokes at lower cost.

Keeping jokes private extends the period that a comic can tell the joke before the market of new ears becomes exhausted. This in turn reduces the frequency that comics have to turn over their material and thus decreases the supply of jokes, thus hurting consumers. So punishing joke theft is basically a mechanism for comics to re-use jokes over time. If jokes are quickly propagated via theft or other means, Comics will have to think up new jokes after the old jokes are used only once and thus consumers will benefit.

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hal

The root of the problem is just as fiction has only seven stories, according to Freud, there are only seven jokes. (Absurdity, Allusion, Analogy, Exaggeration,
Faulty reasoning, Play on words, and Reproach)

All of them are presented in Mel Brooks' "Blazing Saddles" but they were also in the "The 10,000 Year-old Man". Henny Youngman, Shecky Green, Rodney Dangerfield, Red Skelton, et al told the same joke - just with a different character. The joke is not the invention, it's the delivery that is invented.

And, the other problem with copyright law is that it comes hundreds of years after all the original jokes were first written on scrolls. It's analogous to patenting DNA. Conservatively the invention precedes the patent by at least 2.5 million years.

cdrealist

When 'Omer smote 'is bloomin' lyre
He'd heard men sing on land and sea,
An' what he thought 'e might require
'E went and took--the same as me!

The market-girls and fishermen
The shepherds and' the sailors too
They 'eard old songs turn up again
But kep' it quiet--same as you!

They knew 'e stole; 'e knew they knowed
They didn't tell, nor make a fuss
But winked at 'Omer down the road
An' 'e winked back--the same as us.

--Rudyard Kipling