Volume 95

Who’s In the Club?: A Response to Oliar and Sprigman

DOTAN Oliar and Christopher Sprigman contribute to a growing body of case study literature focused on arenas in which social norms supplement or replace formal legal mechanisms as methods of allocating rights to intellectual creations. They document in fascinating detail the ways in which comedians enforce a norm of exclusive rights in jokes, using a variety of informal mechanisms to penalize “joke thieves.” They also show that this present-day norm is a relatively new development, having replaced an earlier regime in which comedians shared jokes on the vaudeville circuit.

The emphasis on “thick” description of the varied means by which creativity is governed in the world is a welcome development. Michael Madison, Brett Frischmann, and I have recently proposed a framework for systematizing such studies in the arena of “constructed cultural commons” for creating and sharing intellectual goods. Social norms are often constitutive of such commons, exemplified by research-tool-sharing among scientists. In these and other situations, going back to Ellickson’s famous case study of ranchers and farmers in Shasta County, social norms are often explained as mechanisms for solving collective action problems. From this rational-choice perspective, enforcement of social norms benefits group members by helping them avoid self-defeating Prisoner’s Dilemma-type situations by coordinating certain activities.

Does Equity Pass the Laugh Test?: A Response to Oliar and Sprigman

Copyright law may not be the answer, but what is the question? Dotan Oliar and Christopher Sprigman explore an example of a norm system—the one among stand-up comedians against joke theft—and show why it is likely superior to use of copyright to protect rights in jokes. In the course of their study they document both how formal copyright law is unsuited to protecting comedic material and what type of norm system, enforced by other comics and booking agents, has sprung up in its stead. From a property point of view, the likely bi-causal relationship between the development of the antiplagiarism norm and the rise of narrative, observational, and social commentary-style comedy out of earlier vaudeville and post-vaudeville styles is now, thanks to Oliar and Sprigman, one of the better documented cases of Demsetzian development we have. Oliar and Sprigman also argue that for all its dangers of mob justice and extreme simplicity, the norm system does protect investments in developing comedic material and is likely more effective and desirable than an enhanced copyright law that might well crowd out the norms system.

Custom, Comedy, and the Value of Dissent

Professors Dotan Oliar and Christopher Sprigman’s new article on 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. Their insightful treatment of the microcosm of comics reinforces my concern that customs are being used to expand IP law both inside and outside the courtroom. I am particularly appreciative of the editors of the Virginia Law Review for inviting this brief response, which allows me to build upon my work on the use of customs and norms in IP.

Although Oliar and Sprigman do not use the term “custom,” I think it is important to recognize that custom includes not only industry practices, but also the social norms that interest Oliar and Sprigman. Oliar and Sprigman make few specific recommendations as to how the law should engage with the norms they document. Nevertheless, they suggest that lawmakers and judges should “consider” seriously the existence of such norms. This leaves too much room for such norms to be incorporated into the law as governing customs—something I have resoundingly criticized except in the most narrow of circumstances. Oliar and Sprigman suggest that Congress should consider the norms of stand-up comedy because those norms provide incentives to create without reliance on the formal legal structure of copyright law. Accordingly, they suggest that Congress should resist expanding IP law because the social norms already fill the legal gaps.

I will organize this response as follows: First, I will consider why the existence of social norms does not adequately challenge the incentive rationale, and therefore does not provide a compelling basis for Congressional restraint. Second, I will consider whether the norms that have developed in the stand-up community are worthy of judicial or legislative deference (without regard to their incentive effect). Finally, I will consider what, if anything, the law should do to interrupt the restrictive norms that Oliar and Sprigman identify.

©Virginia Law Review Association. All rights reserved.