Article

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

 

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.

Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere

Contract law attempts in various ways to regulate the information that contracting parties exchange. However, most contract law doctrines (and most contract law scholars) have yet to come to grips with the practical issues involved in regulating information. For instance, the disclosure of information can produce costs as well as benefits, by distracting parties from other, more important information; so it is often hard to decide which information should have been disclosed in any given case. Similar costs and benefits are often involved even in cases involving false statements (misrepresentations), where liability might seem less controversial.

While these issues are underappreciated in contract law, they are much more familiar in federal consumer protection law, especially in cases involving false advertising; and they are beginning to be recognized in products liability cases involving the duty to warn. This Article suggests various ways to improve contract law’s handling of misrepresentation and nondisclosure, all of which involve closer attention to the relevant costs and benefits.

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