Federal courts often decide cases that include matters of state law, while state courts often decide cases that raise matters of federal law. Most of these cases are decided within the court system in which they originate. Recent commentary advocates more transjurisdictional adjudication through the expanded use of existing procedural devices, and development of new devices. Some commentators endorse greater use of certification by federal courts, while others advocate greater use of transjurisdictional procedural devices to increase the availability of a federal forum to resolve federal legal issues. In this Article, I call for refinement of this approach and argue that commentators have overlooked several looming obstacles. First, the ability of state courts to resolve issues of state law and federal courts issues of federal law relies upon the erroneous assumption that issues of federal and state law are readily separable. Second, the use of transjurisdictional procedural devices that send back to state court state law issues that federal courts otherwise would decide run the risk of admitting state court bias, or the appearance of bias, against out-of-state litigants. Third, commentators underestimate the extent to which transjurisdictional adjudication relies upon cooperation between court systems. Identifying these obstacles leads to a fuller recognition of the costs and benefits of transjurisdictional adjudication, which in turn is useful as a metric against which to measure existing and proposed transjurisdictional procedural devices and as an aid in refining existing devices.
Issue 8
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.
_________________________________________________
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