Nathan Fan is a JD candidate at Osgoode Hall Law School

The lights are dim and a sea of chatter envelopes the venue’s impatient audience. A spot light suddenly snaps into action – a beacon calling for attention that silences the crowd. The opening act strolls confidently to centre stage. With microphone in hand, the comic begins his set. But as the act gets underway the members of the audience are met with a feeling of familiarity, a sense of déjà vu. Then it suddenly hits them: “Did he just steal that joke?”

Joke-thievery. In the world of stand-up comedy, there is no greater sin. But amongst stand-up comedian circles, you’d be hard-pressed to find one comic bringing another comic to court over a stolen joke. In Dotan Oliar and Christopher Sprigman’s article, “Intellectual Property Norms in Stand-Up Comedy”, the authors detail the system of social norms employed by comedians, instead of traditional IP laws, to help protect their jokes.

Oliar and Sprigman’s study suggests that comedians are not using the legal system to prevent joke-thievery because copyright laws do not provide them with a cost-effective way of protecting their expression. Court litigation costs are too high and the expected benefits of copyright lawsuits are too low. As copyright laws only protect the expression of ideas and not the ideas themselves, comedians have a difficult time building a case for copyright infringement when much of the joke stealing involves a retelling of the comedic idea, but not necessarily in the same words.

Instead, comedians have developed a system of social norms to claim ownership of jokes and comedic routines. This normative system promulgates ownership rules distinct from copyright law and enforces such rules through self-policing, which include bad-mouthing, refusing to work together, and threats of violence (e.g. see the heated confrontation between Carlos Mencia and members of the stand-up community). Because of the communal nature of the industry, comedians have been able to effectively police its industry so that there have been relatively few incidents of joke stealing. One comedian interviewed by Oliar and Sprigman explained that “it’s a pretty small fraternity of people who make their living telling jokes. And so we kind of run into each other and see each other on TV and pass each other in clubs and hang out…so there’s nothing more taboo in the comedy world, there’s no worse claim to make against somebody than ‘Oh he’s a f—king thief’”.

The system of norms also regulates the rules pertaining to the ownership of jokes and comedic routines. These rules differ markedly from the traditional notions of ownership established by copyright laws. Described by Oliar and Sprigman as the “own the premise/own the joke” rule, a comedian establishes ownership of a joke when she establishes the premise, even if the rest of the joke or even the punch line is supplied by another comedian, contrary to the collective or joint authorship rules under copyright law.

The “sponsorship” rule holds that a comedian (the “sponsor”) who hires writers to create jokes will ultimately hold all ownership of the jokes, regardless of whether the writer is a formal employee or an independent contractor. This is in contrast to copyright laws that distinguish ownership rights between “works-made-for-hire” and works from independent contractors.

The “alienation of ownership” rule is such that in selling a joke to a rival, the originator divests herself of the joke and retains no right to perform it or use it otherwise (i.e. derivative works). The ownership of the joke is completely assigned to the purchaser and the norm does not allow for nonexclusive licenses. This differs from copyright law, which allows for nonexclusive licenses or exclusive licenses and assignments with a written statement of transfer. One comedian describes this process as such: “[When I buy a joke,] it’s mine – lock, stock and barrel. [The writer] can’t perform them, and my ….oral agreement with my writers is you can’t tell anybody that you wrote the joke. You can only say on a resume that you write for me, but you cannot specifically say what jokes you have written for me.”

Oliar and Sprigman explain that the “all-or-nothing” approach to ownership is necessary for the normative system to be effective in preventing joke stealing. Since joint ownership would involve the possibility of two owners telling the same joke, comedians monitoring for joke stealing could detect false positives which would frustrate the normative system’s efficiency. Similarly, if there were attempts at nonexclusive licensing of jokes, two or more comedians could exploit the same jokes, frustrating the community’s ability to distinguish between authorized use and unauthorized appropriation.

The article also explains that this normative system was not always in place for stand-up comedy. Back in the days of vaudeville comedy, misappropriation of jokes and comic routines were common place. The vaudeville jokes of the late 1800s to the mid-1900s were generic and difficult to associate with a particular comedian. A comedian’s success often hinged on his mastery of joke delivery, mimicry, timing, repertoire and rapport with the audience. The actual content of the jokes were interchanged, freely appropriated and refined by all. However, by the mid-1900s, stand-up comedy developed into increasingly unique monologues, narratives that carried an individual comedian’s distinct point of view. With the development of radio and television which gave comedians a nation-wide audience, the desire to protect one’s jokes became much more prevalent.

The failure of traditional IP laws to protect these jokes led the stand-up community to develop this normative system. Oliar and Sprigman suggest that the success of the current IP regime governing stand-up is a wake-up call for IP theorists who champion IP law’s superiority for encouraging intellectual output. The stand-up community’s success suggests that formal IP law is not necessarily right for stand-up or for every creative practice. This also cautions against the “careless expansion of legal protections” without considering whether an informal regime would better suit the creative community.  At the same time, Oliar and Sprigman clearly note that they are not suggesting that what works for stand-up can necessarily work for other creative endeavours.

As communication technology continues to advance, there is a growing fear of having one’s perfectly crafted joke stolen.  First, the radio and television allowed a joke to be broadcast across a nation. Now with the use of YouTube and Twitter, a comic’s first performance could be posted to millions on the internet by the following morning. It seems that the stand-up community’s ability to self-police was at least partially due to its tribal, communal nature. All of the major acts know each other and cross each other’s paths. But with the ability of a joke to easily cross borders and cross oceans, such a self-policed system becomes much more difficult to employ. However, stand-up’s normative system has some hope of surviving as it could foreseeably utilize the Internet itself for its sanctioning purposes (e.g. YouTube is rife with videos alleging joke-thievery). Nonetheless, the stand-up comedy community has put a spotlight on the fact that some creative communities are being better served by informal normative regimes than by the traditional legal system. Perhaps other creative communities  can learn a thing or two from stand-up comedy.

Posted in Copyright, IP