Works in Progress - Spring 2011

Take My Research. Please.

By Elyse Graham | June 24, 2013


Did ya hear the one about the law professors delving into the ramifications of joke theft? Dotan Oliar and Christopher Sprigman of the University of Virginia School of Law have examined the development of informal intellectual property norms in stand-up comedy—a field whose practitioners generally can’t afford to sue one another over copyright violations. They are co-writing a chapter on the subject for a book to be published later this year.

Their project’s inspiration was an online video of comedian Joe Rogan storming onstage to accuse comedian Carlos Mencia of stealing a joke from a friend. Why go to such lengths to humiliate Mencia? Sprigman wondered. Why not just file a copyright lawsuit? But he and Oliar searched in vain for copyright infringement cases between comedians. “In law school,” Oliar says, “we teach people that absent [copyright] protections, people will not be disposed to create. Here we see in action an area of creativity that is absent these protections and yet is enormously productive: there are over 300 comedy clubs in the U.S. It makes us second-guess our belief that legal protection is necessary to guarantee a cer- tain level of creativity.”

They also interviewed some 20 comedians on the subject and found that performers police and sanction each other: young comedians quickly learn not to tell the jokes of others; violators risk being shunned by clubs or booking agents; there is even sometimes a threat of violence. The system mostly works. “As with criminal law, a small minority of people is doing the vast majority ofthestealing,” Oliar says.

It turns out that the absence of lawsuits may also result from the prevailing kind of stand-up material. As evidence, the researchers point to the recent history of stand-up. The norm in the mid-1960s, at least on the lower rungs of the comedy ladder, was one-liners gleaned from joke compilations. Today professional jokes are no longer considered public property and stand-up is mostly driven by persona and narrative. Sprigman and Oliar point out that it’s easier to prove ownership of a narrative than a one-liner. And that’s no joke.

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