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Intellectual Property Norms in Stand-Up Comedy


Dotan Oliar


University of Virginia School of Law

Christopher Jon Sprigman


New York University School of Law; University of Virginia School of Law

July 5, 2010

THE MAKING AND UNMAKING OF INTELLECTUAL PROPERTY, University of Chicago Press, 2010

Abstract:     
In this paper, which will appear as a chapter of a forthcoming book from the Univ. of Chicago Press, "The Making and Unmaking of Intellectual Property," we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims 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.

Our study has implications for intellectual property theory and policy. First, its suggests that the lack of legal protection for intellectual labor does not entail a market failure by necessity, as social norms may induce creativity. Second, it suggests that the rules governing a particular creative practice affect not only how much material is created, but also its kind. Third, we suggest that comedians' IP norms system emerged over the past half century as technological change increased the benefit of having property rights in jokes and concomitantly reduced the costs of enforcing those rights. Fourth, we note that stand-up's norms system recognizes only a limited set of forms of ownership and transfer. We suggest that the system's crude rights structure is driven by the fact that effective enforcement requires that ownership be clear to the community. Lastly, social norms offer a way to regulate creative practices that do not sit well within IP law's one-size-fits-all mold. They do so, moreover, without imposing on society the costs of disuniformity in the formal law, including legal complexity and industry-driven lobbying.

Stand-up's norms system has both benefits and costs, which we detail in the paper. However, norms-based IP systems offer an alternative (or supplementary) cost/benefit bundle which in some cases may be superior to that of formal law alone. In stand-up's case, norms economize on enforcement costs and appear to maintain a healthy level of incentives to create alongside a greater diversity in the kinds of humor produced. A final assessment of stand-up's social norms system awaits further work. With what we currently know, we are cautiously optimistic.

Number of Pages in PDF File: 17

Keywords: copyright, social norms, intellectual property, law and economics, emergence of property rights, stand-up comedy

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Date posted: July 5, 2010 ; Last revised: July 9, 2010

Suggested Citation

Oliar, Dotan and Sprigman, Christopher Jon, Intellectual Property Norms in Stand-Up Comedy (July 5, 2010). THE MAKING AND UNMAKING OF INTELLECTUAL PROPERTY, University of Chicago Press, 2010 . Available at SSRN: http://ssrn.com/abstract=1635023

Contact Information

Dotan Oliar
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-3219 (Phone)

Christopher Jon Sprigman (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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