OLIAR_SPRIGMAN_BOOK 11/10/2008 4:48 PM VIRGINIA LAW REVIEW VOLUME 94 DECEMBER 2008 NUMBER 8 ARTICLES THERE’S NO FREE LAUGH (ANYMORE): THE EMERGENCE OF INTELLECTUAL PROPERTY NORMS AND THE TRANSFORMATION OF STAND-UP COMEDY Dotan Oliar and Christopher Sprigman∗ INTRODUCTION................................................................................. 1789 I. THE LAW DOES NOT PROTECT STAND-UP COMEDIANS EFFECTIVELY.............................................................................. 1795 A. Practical Barriers to Copyright Enforcement ................... 1799 B. Doctrinal Barriers to Copyright Enforcement.................. 1801 1. Fixation........................................................................... 1801 ∗ Authors are Associate Professors, University of Virginia School of Law. Thanks to Oren Bar-Gill, Stefan Bechtold, Yochai Benkler, Lillian BeVier, Mario Biagioli, Thomas Cotter, Rochelle Dreyfuss, Brandon Garrett, James Gibson, Scott Hemphill, Jody Kraus, Mark Lemley, Paul Michael Levitt, Michael Madison, William McGev- eran, Paul Mahoney, John Monahan, Caleb Nelson, Dan Ortiz, Frank Pasquale, Kal Raustiala, Glen Robinson, Pam Samuelson, Suzanne Scotchmer, Steven Shavell, Lior Strahilevitz, Eric Von Hippel, Christopher Yoo, and participants at the 2008 annual meeting of the American Law and Economics Association, the 2008 Intellectual Property Scholars Conference, and workshops and colloquia at the University of Cali- fornia, Berkeley, the University of Minnesota, the University of Virginia, the Rad- cliffe Institute at Harvard, the Swiss Federal Institute of Technology Zürich, Tel Aviv University and the Hebrew University, Israel for helpful comments and conversa- tions. Thanks also to Jonathan Ashley, Dave Brown, Ben Doherty, Tim Hagen, Travis Mock, Michelle Morris and Matthew Prince for research assistance, and to Dwight Bowers and Julia Garcia of the Smithsonian Institution for their assistance with archival materials. A special thanks to Brady Cox for his fine research assistance, especially regarding historical materials. Finally, we extend our deepest thanks to all the comedians who took the time to talk with us and to educate us about stand-up comedy. Our promise of anonymity means we cannot thank them by name, but this paper would not have been possible without their help. 1787 OLIAR_SPRIGMAN_BOOK 11/10/2008 4:48 PM 1788 Virginia Law Review [Vol. 94:1787 2. Idea Versus Expression................................................. 1802 3. Independent Creation.................................................... 1804 C. Other Relatively Ineffective Forms of Intellectual Property Protection ............................................................. 1805 1. Trademark Law............................................................. 1805 2. Patent Law ..................................................................... 1808 3. Right of Publicity........................................................... 1809 II. SOCIAL NORMS REGULATING APPROPRIATION AMONG STAND-UP COMEDIANS............................................................. 1809 A. The Norm Against Appropriation ..................................... 1812 1 Detection ........................................................................ 1813 2. Process............................................................................ 1814 3. Enforcement................................................................... 1815 4. Preference for Private Action....................................... 1821 5. Expression Versus Ideas and Overlap with Plagiarism ...................................................................... 1822 6. Duration ......................................................................... 1823 B. Norms Regarding Authorship and Transfer of Jokes...... 1825 1 Norm Against Joint Authorship................................... 1825 2. Norm Regarding Priority.............................................. 1826 3. Norm Regarding Works Made for Hire...................... 1827 4. Norm Regarding Transfers........................................... 1827 C. Norms that Limit Ownership.............................................. 1828 III. ANALYSIS AND IMPLICATIONS FOR INTELLECTUAL PROPERTY THEORY AND POLICY............................................. 1831 A. The Law/Norms Interface................................................... 1831 1. Social Norms as an Overlooked Source of Incentive to Create ......................................................................... 1831 2. The Law/Norms Gap.................................................... 1834 3. Costs and Benefits of Law Versus Norms................... 1836 4. Norms May Undermine Legal Policy ......................... 1838 5. Norms as an Escape from IP’s One-Size-Fits-All Straightjacket.................................................................. 1839 B. The Role of IP Rules in Shaping Creative Output ........... 1841 1. Joke Stealing in Historical Perspective........................ 1842 a. Vaudeville, Burlesque, and Minstrelsy.................. 1842 b. The Post-Vaudeville Era ........................................ 1846 c. The Rise of Point-of-View Driven Stand-Up........ 1850 OLIAR_SPRIGMAN_BOOK 11/10/2008 4:48 PM 2008] Emergence of Intellectual Property Norms 1789 2. Inducing Creativity: ‘How Much’ Versus ‘What Kind’ ............................................................................... 1853 C. The Emergence of Intellectual Property Norms ............... 1859 D. Why Is the Norm System So Simple and Crude? Legal Realism and the Numerus Clausus Principle.................... 1864 CONCLUSION..................................................................................... 1865 One day Milton Berle and Henny Youngman were listening to Joey Bishop tell a particularly funny gag. “Gee, I wish I said that,” Berle whispered. “Don’t worry, Milton, [said Henny,] you will.”1 INTRODUCTION AKING a living in stand-up comedy takes hard work. You M spend most of your free time between performances writing and re-writing new material, ninety percent of which bombs when you first try it on stage. You take whatever is left, work the circuit night after night, play with words, change their order, weave pauses, gestures, and facial expressions here and there. You turn the merely pleasing into funny, and then funnier. One night, maybe a few months later, you have perfected your bit and it kills.2 But then there is the ever-present danger that a rival comedian who sees your act will be tempted to avoid the hassle of writing new ma- terial by taking yours. Comedians are not amused when their jokes are stolen, and for that reason we might expect joke-stealing disputes to ripen into lawsuits occasionally.3 Copyright is the most relevant body of law; formally, it applies to jokes and comedic routines. Yet, we could not find even a single copyright infringement lawsuit between rival comedians.4 The absence of lawsuits is not terribly surprising. For 1 Melvin Helitzer, Comedy Writing Secrets 4 (1987). 2 See Judy Carter, Stand-Up Comedy: The Book, at xxv (1989) (defining “I killed” to mean “I did great” in comic-speak); see also Ritch Shnyder & Mark Schiff, I Killed: True Stories of the Road from America’s Top Comics (2006). 3 In this Article, we distinguish between “joke stealing” and “copyright infringe- ment.” Each term relates to a system that defines a set of rights, determines what conduct violates them, and how violators are to be sanctioned. The former term, however, relates to comedians’ norms and the latter to intellectual property law. 4 There have been a small number of lawsuits involving jokes, but the defendants in these actions are businesses such as t-shirt manufacturers, motion picture studios, and OLIAR_SPRIGMAN_BOOK 11/10/2008 4:48 PM 1790 Virginia Law Review [Vol. 94:1787 reasons we will detail later, copyright law does not provide come- dians with a cost effective way of protecting the essence of their creativity.5 Here we have a puzzle. Conventional intellectual property wis- dom suggests that absent formal legal protection, there will be an inadequate provision of creative works, as authors and inventors would be unlikely to recoup their cost of creation. If there is no ef- fective legal protection against joke theft, then why do thousands of stand-ups keep cranking out new material night after night?6 And since they do, what lessons can we take away for IP theory and policy? Having conducted a series of lengthy interviews with comics, we offer an answer: in stand-up comedy, social norms substitute for in- tellectual property law. These norms track copyright law at times: for example, the major norm at work is one against publicly per- forming another stand-up’s joke or bit. More often than not, how- ever, the norms deviate from copyright law’s defaults: for example, whereas copyright protects expression but not ideas, comedians’ norms protect expression as well as ideas. Or take the issue of au- thorship: under copyright law, two individuals who cooperate in creating a work are considered joint authors and 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. Taken as a whole, this norms system governs a wide array of issues book authors and publishers who are alleged to have appropriated comic material. See infra note 32 and accompanying text. 5 See infra Part I (analyzing current legal protections available