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Intellectual Property

Tuesday, June 26, 2012

Standup comedy and the rise of an informal intellectual property regime


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These days I get much of my news, information, and entertainment from podcasts, and one of my favorite podcasts is the "WTF Podcast," by Marc Maron. Maron was an up-and-coming standup comedian in the early 1990s when standup comedy was riding a wave of popularity and for a short time was a host of Comedy Central's Short Attention Span Theater, which was a compilation of clips from various standup acts. These days, if Short Attention Span Theater is remembered at all, it is remembered as being the launch pad for the television career of one Jonathan Stuart Leibowitz.

Obviously, Maron's career didn't take quite the same trajectory as Stewart's. Although he was still a skilled comic with numerous TV appearances, including 16 spots on Late Night With Conan O'Brien from 1994 to 2008, he felt he was languishing, even after having been sober since the turn of the millennium.

Maron was famously hired and fired as a radio host on the ill-fated Air America Radio three times. After the liberal talk network's final demise, a series of personal problems and burned bridges, Maron said that he was told that he was "unhirable." In 2009, facing, among other things, a nasty divorce and unemployment, Maron decided to enter the world of podcasting.

He discovered that Air America's management was so incompetent that it had forgotten to deactivate its former employees' identification badges, and Maron and his producer were able to get into the studios to start recording.

The format of Maron's twice-weekly podcast is a short rant followed by a lengthy interview. The majority of his interview subjects are comedians, but he also occasional throws in interviews with others, such as musicians, actors, directors, and authors. Maron's podcast has since been lauded in, among others, an October 2010 blog post at This American Life, a January 2011 article in The New York Times, and an April 2001 interview on Weekend Edition.

But Maron's podcast made its first big splash in May 2010 when he interviewed comedian Carlos Mencia. Mencia became a TV star in 2006 when his show, Mind of Mencia was used by Comedy Central to fill in the gap caused by the departure of Dave Chappelle and his wildly popular Chappelle's Show. That show lasted four seasons, but what Mencia has become known for since then is as the comedian most hated by other comedians. Indeed, while commenting on the Jay Leno-Conan O'Brien pop culture brouhaha, a January 2010 essay in no less august an institution than The Wall Street Journal named Mencia (along with Leno and Dane Cook) among the three most hated comedians in the business.

This animosity towards Mencia was manifest in a campaign by another comedian, Joe Rogan, who began with a blog post in 2005, accusing Mencia of being a joke thief. In 2007, Rogan barged in on a live performance by Mencia to denounce him and a video of that confrontation was posted on the internet. Thereafter, there were a series of videos comparing clips from Mencia's performances side-by-side with clips of other comedians, including superstars like Bill Cosby, in addition to less well-known comedians.

Now here's where the intellectual property interest comes in. What recourse does a comedian have when he or she believes that his jokes have been "stolen" by another comedian? This seems to be a kind of plagiarism, and it is certainly an ethic of the comedy business that you don't "steal jokes" from other comedians. Whether this kind of thing fits under a plagiarism rubric, we know for sure that it's difficult to fit under more conventional intellectual property regimes.

The most obvious kind of intellectual property right that might be at stake here is copyright. But, of course, it is also immediately obvious that joke stealing is unlikely to constitute copyright infringement in most cases. Copyright law protects specific expression, and most commonly joke stealing is about the use of the premise of a joke rather than any specific expression that might be protected as an original, creative work of authorship.

Most comedians, at least in the modern era, trade on their personalities and quirks, so if a comedian is going to steal a joke from another comedian, he or she is unlikely to copy the exact words, but instead translate the premise of the joke by applying the comic persona that he or she has developed.

So if the formal copyright regime doesn't apply, then what can a comedian who feels stolen from do?

That question might be answered by two law professors at the University of VirginiaDotan Oliar and Christopher Jon Sprigman—who in 2009 published a paper on this very question. Oliar and Sprigman described how, in the absence of an applicable legal regimes, comedians acting as a social and professional group have created their own intellectual property regime, enforced as social norms.

Oliar and Sprigman's analysis of what has happened in the standup comedy industry is a fascinating look at how, when a particular social group recognizes the value of enforcing property rights in a certain kind of creative output, it can effectively institute and impose a crude intellectual property regime in the absence of formal legal protection. (Oliar and Sprigman were interviewed (transcript) on WNYC's On the Media  in April 2010.)

It makes me wonder whether there are other kinds of intellectual property regimes, not codified in law, that we might be overlooking.


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