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There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy

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 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, it 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. 

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This article produced a number of responses. To read more:

Does Equity Pass the Laugh Test? By Henry E. Smith

Who’s in the Club? By Katherine J. Strandburg

Custom, Comedy, and the Value of Dissent By Jennifer E. Rothman

Of Coase and Comics, or, The Comedy of Copyright By Michael J. Madison

The authors respond:

From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create By Dotan Oliar & Christopher Sprigman

 

Deforming the Federal Rules: An Essay on What’s Wrong with the Recent Erie Decision

This essay discusses two troubling decisions of the Supreme Court under the Eriedoctrine. In Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996), the Court held that a state statute providing for enhanced appellate review of jury verdicts must be followed by federal trial courts (but not federal courts of appeal) in diversity cases. This decision creates a rule that is a pastiche of federal and state law, but neither the one nor the other. Through such ad hoc lawmaking, the decision almost turns the Erie doctrine on its head by creating “‘a transcendental body of law outside of any particular State but obligatory within it.’” And in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), the Court held that a dismissal that “operates as an adjudication upon the merits” nevertheless does not preclude a subsequent action in a different forum on the same claim. We are left to wonder what kind of judgment is necessary to actually bring litigation to a close.

These decisions are puzzling and for that reason have attracted a chorus of academic criticism. Yet decisions so complex and counterintuitive demand explanation as much as criticism and this essay seeks to explain how the Supreme Court has reached this impasse in applying and expounding the Erie doctrine. Part I locates the initial problem with the decision in the unwonted complexity of the Court’s holdings. Convoluted legal doctrine may be the natural consequence of hard-fought constitutional controversies, but the principles underlying the Erie doctrine should by now have been long settled. InGasperini and Semtek, the Court could have reached a better decision in each case by the simple expedient of directly confronting the choice whether to give full effect to a Federal Rule of Civil Procedure, and if not, declaring it partially or wholly invalid. Part II offers an explanation of why the Court did not take this course. There are three components to this explanation: first, implicit or explicit doubts about the scope and validity of the Federal Rules; second, a tendency to give the Federal Rules an artificially narrow interpretation to avoid perceived conflicts with state law; and third, a resort to case-by-case determinations when a federal rule is claimed to infringe upon a state substantive right as the dominant means of resolving questions under the Erie doctrine. This essay concludes with some reflections on consequences of these decisions for the stability of the Federal Rules and their ability “to secure the just, speedy, and inexpensive determination of every action.”

Justiciability and Remedies–And Their Connections to Substantive Rights

Conventional thinking divides lawsuits into three distinct stages. First, the court determines justiciability – involving whether the plaintiff has standing, the suit is ripe, and so forth. Second, if the suit is justiciable, the court rules on the merits. Finally, if the plaintiff prevails, the court determines the remedy. Sophisticated commentators have long derided this model as oversimplified. Some have maintained that views about substantive rights (the second stage) influence determinations of justiciability (the first). Others have contended that views about acceptable remedies (the third stage) sometimes determine how courts define substantive rights (the second). But no previous commentator has pervasively linked the third stage to the first by establishing a general, systematic connection between judicial apprehensions about unacceptable remedies, or occasionally necessary ones, and the law governing justiciability. This article shows that such a linkage exists.

The article advances two important theses. The narrower of these, the Remedial Influences on Justiciability Thesis, holds that concerns about unacceptable, appropriate, and sometimes necessary remedies exert a nearly ubiquitous, often unrecognized, and little understood influence in the shaping of justiciability doctrines such as standing, mootness, ripeness, and political question. When the Supreme Court confronts the prospect of remedies (or occasionally a non-availability of remedies) that it deems practically unacceptable, it frequently adjusts the applicable law. Sometimes the adjustment occurs within the law of remedies, sometimes in substantive constitutional doctrine. Often, however, concerns about unacceptable, appropriate, and necessary remedies manifest themselves in the design and application of justiciability rules.

Although the Remedial Influences on Justiciability Thesis is novel and important, it is only one aspect of a broader, more important positive thesis that this article also advances. The broader thesis, the Equilibration Thesis, holds that justiciability, substantive, and remedial doctrines constitute a single, overall, mutually interconnected and reciprocally influencing package. In formulating and adjusting doctrine, the Supreme Court does not view justiciability, substantive, and remedial rules as sharply isolated from one another, nor does it regard the considerations that influence its decisions as appropriately bearing on only one kind of doctrine. It does not, for example, differentiate remedial concerns that could properly bear only on the design of remedial doctrines from justiciability considerations distinctively relevant only to justiciability law. Rather, the Court decides cases by seeking an optimal overall alignment of doctrines involving justiciability, substantive rights, and available remedies. 

In addition to advancing the Remedial Influences on Justiciability and Equilibration Theses, this article offers normative reflections on the law and judicial practice that those theses describe. In particular, the article criticizes current standing doctrine and proposes a reformulation that would better promote the concerns, often involving unacceptable remedies, that standing law reflects.

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