Woe to those who violate our norms-based IP system!

by Brian McKim & Traci Skene on September 19th, 2008

Christopher Sprigman and Dotan Oliar of the University of Virginia School of Law have authored “The Emergence of Intellectual Property Norms in Stand-Up Comedy” The abstract begins like this:

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 against theft. Initially, jokes were effectively in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a norms-based IP system. This system serves as a stand-in for formal law, and regulates authorship, ownership, transfer, 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.

Allow us to translate:

Rather than rely on conventional means to copyright or protect our original material (like mailing in a cassette recording of our act with a fee to the proper authorities in D.C.), we rely on less formal means of policing the joke stealing. In the past, comics pretty much took the jokes they wanted from other comedians and no material was safe from thievery. Lately, though, comedians have come to be protective of their material and they’ve cooked up a system whereby we can regulate the purchasing, borrowing, selling and transfer of material between and among comedians and we’ve figured out various ways of preventing comics from stealing from other comics.

We here at SHECKYmagazine became aware of this paper when we were contacted a few months back by Sprigman. The Male Half consented to a lengthy phone interview with Sprigman and Oliar, which resulted in a handful of citations (of both SHECKYmagazine generally and of The Male Half specifically) throughout the paper.

We love the phrase “norms-based IP system!” It takes in activities like going on Stern and calling someone out as a thief, jacking someone up against a wall in the greenroom and emailing club owners and letting them know that you’re not happy about an open-miker who’s doing Shandling’s entire first Carson set. This kind of activity is covered and it’s couched in academic language. Wildly entertaining!

Compare post-vaudeville stand-up with the modern incarnation of the form. Appropriation in stand-up is now regulated by an informal IP system. Under the current community-based regulation, the text is protected—not perfectly, but the norms system does raise the cost of appropriation. And in line with what we might expect when the cost of appropriating text goes up, we find that comedians invest more at the margin in innovation directed at the text. Creators in today’s stand-up community invest in new, original and personal content. The medium is no longer focused on re-working of previously-existing genres like marriage jokes, ethnic jokes, mother-in-law jokes or (heaven forbid) knock-knock jokes. At the same time, it is perhaps also true (at least it seems so to us) that comedians today appear to invest less in developing the performative aspects of their work; indeed, many stand-ups today stand at a microphone, dress simply and move around very little, compared to the more elaborate costuming, mimicry, musicianship, and play-acting that characterized the post-vaudeville comics.

We haven’t read the entire paper, but we intend to (it’s 53 pages long), and we encourage others to do so. (And the authors would be quot;grateful for whatever input we can get from the stand-up community at large.” Hop onto the SSRN website, register (it takes about 15 seconds), retrieve your password from your inbox about 30 seconds later, then go back and either email the paper in .pdf format to yourself or download the .pdf file and read it right there. You’ll notice the contact author’s info is at the bottom of the SSRN page.