December 10, 2008 — In part, it was a viral video of two well-known comedians hurling obscenities at each other that prompted a pair of University of Virginia law professors to take a serious look at how professional comics protect themselves from joke theft.
In February 2007, stand-up comedians Joe Rogan and Carlos Mencia squared off on stage at a prominent Los Angeles comedy club after Rogan accused Mencia — whom he dubbed "Carlos Menstealia" — of pilfering material from other comedians. A video of the altercation garnered more than 2 million views online and countless mentions on blogs and Web sites.
"The two of them had an almost physical fight on stage where they were yelling at each other about the accusation of joke stealing, and Mencia was denying it," said Chris Sprigman, who with faculty colleague Dotan Oliar authored an upcoming Virginia Law Review article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy."
The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work — copyright law plays little role in comedy — why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?
After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes — and that the system functions as a stand-in for copyright law.
"Most of our research over the last year has been trying to piece together all the attributes of this system that comedians have started up and run for themselves," Sprigman said.
In their paper, published in the December edition of the Virginia Law Review, Oliar and Sprigman identify several of the informal rules that govern stand-up comedy.
The most obvious is the prohibition against joke stealing, which resembles formal intellectual property law in spirit. But the researchers found other comedy norms don't closely adhere to the law on the books.
"Under regular copyright law, if two people write a book together, they are co-owners of the copyright," Oliar said. "With comedians, if one comedian comes up with a premise for a joke, but another supplies the punch line, the guy who came up with the premise owns the joke. The guy who came up with the punch line knows that he doesn't get an ownership stake, he's just volunteering a punch line to the other guy."
The stand-up community also has enforcement methods for violators. The first step a comedian takes if he feels another is stealing his material is to go and talk to the suspected culprit, Oliar said. The two try to determine whether one of them has copied the joke from the other or whether they each came up with it independently. In the process, they may compare notes on who has been doing the joke longer, and appeal to third-party witnesses if necessary to settle the facts.
In some cases, the offending comedian may not even have realized that he or she didn't come up with a joke, Sprigman and Oliar said.
"We heard one story where a guy was confronted by his best friend. He said 'Oh, you're right,' and he stopped doing the joke. It's called subconscious copying, and it is also actionable in copyright law. While creating, you're not aware that you heard it somewhere before," Oliar said.
Other arrangements could include the comedians sorting out how each one should tell the joke, or in what geographic area. In some cases, they simply agree not to do the joke if they are on the same bill.
Most joke ownership disagreements — perhaps as many as 90 to 95 percent — can be settled this way, Oliar said.
But when negotiation doesn't work, the comedy community has its own methods for punishing violators. During his on-stage confrontation with Rogan, Mencia was on the receiving end of one of the most potent techniques comedians use to deter joke thievery: venomous ridicule.
The stand-up community is relatively small, and is made up of a few thousand practitioners, many of whom see each other with some regularity. So word gets around if someone is a joke stealer, and other comedians make the workplace uncomfortable for the alleged thief.
"We just heard over and over again that the bad-mouthing sanction was something that created an unpleasant environment for the accused comic to be in," Sprigman said.
Sometimes, affronted comedians will refuse to work with a suspected joke thief. As many comedy clubs require multiple comedians to fill up a bill, this can be an effective form of punishment because it hits the perpetrator in the wallet and robs them of desired exposure, Oliar said.
A third, less-frequently used sanction is physical violence, or at least the threat of it.
"This is not very common," Oliar said. "Comedians aren't bullies generally. They are funny people and they don't want to end up in jail over a joke, as one of them told us. But still, since the confrontation is one-on-one and it's very loaded, and since there have been cases of actual violence and stories about it abound among comedians, there is always the fear that it might happen. Certainly threats of violence are much more common among comedians than actual violence."
For Sprigman and Oliar, the study of stand-up comedy has ramifications for the larger world of intellectual property law, or the body of law that protects creative works through devices such as patents, trademarks and copyrights.
The underpinning of such law is the notion that without it, theft would be so rampant that there would be no incentive to create or innovate, Oliar said.
"For us, the most salient observation is that the law has not done the job of protecting jokes, but the joke market has not failed. The market is substituting this set of informal rules for the formal ones, and as far as we can see it's doing a pretty good job," Sprigman said.
In their research of stand-up comedy, the pair found that as the nature of stand-up evolved, so did the stand-up community's system of protecting itself from joke thieves.
"It's very costly and very hard to come up with funny jokes. It's actually a long process; you don't just work in your room and then you have it. You have to try it out and see if people laugh. A lot of them, you write and you think it's funny — try it out and people don't laugh, so you change the words and you work the stand-up circuit night after night. It takes time to make a joke funny and make a joke actually work," Oliar said.
Today's stand-up is individualized and driven by a comic's unique point of view. But it wasn't always so. Before the 1960s, most stand-up comedians used a rapid delivery of short, one-liner "jokey-jokes" that were more or less interchangeable. Some would get these zingers — which included the ever-present ethnic jokes or mother-in-law jokes — from joke books or other sources. Some would also steal. The emphasis, Sprigman said, was on the delivery, not the content of the joke, and joke theft was not only rampant but also more or less accepted.
"Then in the '60s, we have this norm system arising, and suddenly it's the new era of stand-up as we know it today, which is very individual, personal and point-of-view driven. People don't just stand and tell jokes that came from a book," Oliar said.
During their research, Sprigman and Oliar found a high degree of interdependence between the changing nature of stand-up comedy and the emergence of the norm system to govern joke theft.
"So typically we talk about intellectual property law having an impact on how much innovation we get, but here we see an impact of intellectual property protection on what kind of innovation we get, which is a totally different thing," Sprigman said.
Both men stressed that joke theft is not common in the world of stand-up comedy, and that most comedians pride themselves on creating original material.
One potential downside to the social norm system as opposed to formal legal protection is that social norms might not be effective at punishing comedians who get to the top of the field, they said.
"If a successful comedian doesn't care too much about the community's feelings toward him, then he's hard to discipline," Sprigman said. "But keep in mind that the formal law doesn't always work either. There are all kinds of copyright rules that apply to the music industry, but there are millions of people illegally downloading songs.
"There's always a slippage between the law on the books, or the rules in the norms system, and the ability of these rules to be enforced."
This story originally appeared on the U.Va. School of Law Web site.