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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?