Custom, Comedy and the Value of Dissent

9 Pages Posted: 13 May 2009 Last revised: 14 May 2009

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

Loyola Law School, Loyola Marymount University, Los Angeles; Yale Information Society Project, Yale Law School

Date Written: May 12, 2009


In this essay, I comment on Dotan Oliar and Christopher Sprigman's article, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008). Their study of the quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. The microcosm of stand-up comedy reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. This response to Oliar & Sprigman rejects the suggestion that the existence of social norms challenges the incentive rationale for copyright law. I also conclude that the norms that have developed in the stand-up community are not worthy of judicial or legislative deference and suggest some ways that comics and the courts can disrupt the restrictive norms that Oliar and Sprigman identify.

Keywords: copyright, norms, intellectual property, law and economics, emergence of property rights, stand-up comedy, custom, entertainment, private ordering, industry standards, fair use, clearance culture, best practices

JEL Classification: K10, K11, K12, K13, K39, O34

Suggested Citation

Rothman, Jennifer E., Custom, Comedy and the Value of Dissent (May 12, 2009). Virginia Law Review In Brief, Vol. 95, p. 19, 2009; Loyola-LA Legal Studies Paper No. 2009-18. Available at SSRN:

Jennifer E. Rothman (Contact Author)

Loyola Law School, Loyola Marymount University, Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-2776 (Phone)
(213) 380-3769 (Fax)


Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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