The Knockoff Economy (18 page)

But as we explained earlier in this chapter, it hasn’t always been this way. In an earlier era, funnymen regularly reworked, recycled, and simply stole jokes from their rivals. No one thought it was particularly unusual or wrong to do so, and many—no surprise—joked about it. We are not sure what led to the change in views over the merits of copying. Certainly technological changes have made it easier for audiences to notice copying. In the Borscht Belt days, audiences were all live. Today, there are television specials, comedy albums, and of course YouTube. Whatever the precise reason, however, comedians today are far more vigilant against copying underlying ideas and expressions.

Jokes are often produced collaboratively. Comics spend a lot of time together in clubs and on the road, and often they work out new material while hanging out with other comics. It is not uncommon for a comedian with a great premise to probe another for punch lines, or to try out new jokes on a friend and replace a punch line with one suggested by a peer. Under the rules of copyright law, the comedian originating the premise and the comedian originating the punch line would be joint authors and co-owners of the resulting joke. Comedians, however, adhere to a different rule:
the comedian who came up with the premise owns the joke.
The comedian who offered the punch line would know that she has in effect donated her services.

Why do comedians reject the legal rules governing joint authorship? Because they are incompatible with effective enforcement of the norm against copying. If two comedians were true joint authors, both would own equal
rights in the joke. But if both told the same joke, fellow comedians and audience members would think one copied the other.

Joint ownership of a joke, in short, would frustrate enforcement of the cardinal anti-copying norm. Today, all that one needs to enforce the norm is to witness two comedians telling a similar joke. However, under a norms system that recognized joint authorship, detection of stealing would be more difficult, because two comedians telling the same joke can indicate either theft or co-ownership. With the signals muddied in this way, the norm system might well break down.

The same basic concern drives a separate norm governing how comedians buy and sell jokes. Copyright law says that to license or purchase a work, the buyer must have a signed, written agreement. But again, comedians follow their own rule. Jokes are usually sold with a handshake. And whatever the law may say, it is clear to comedians that an oral deal is binding and that the seller has transferred all of his rights in the joke. The transfer of rights in the joke is so complete that the originator cannot even identify himself publicly as the joke’s writer. As one comedian explained: “[When I buy a joke,] it’s mine, lock, stock and barrel. [My] oral agreement with my writers is you can’t even tell anybody that you wrote the joke. You can say on a resume that you write for me but you cannot say specifically what jokes you have written for me.”

In copyright law, “firstness,” or “priority” of authorship, has little relevance to the validity of a copyright. If a second author happened to
independently
create a work that is identical to a previous work, the second creator still has a valid copyright. But comedians’ norms system favors those who get there first. Also, comedians agree that as a practical matter, when two comedians have been performing a similar joke, the first to perform the joke on television owns it exclusively. The act of doing a joke or routine on TV is, in many senses, a bit like filing for patent protection: it grants exclusive title to a joke publicly.

Firstness also has a role in determining who owns jokes submitted to late-night talk shows. Hosts like Jay Leno and David Letterman maintain email addresses (initially these were fax lines) that comedians use to submit material for the nightly monologue. If the jokes are aired, the lucky writer gets a
check in the mail. It sometimes happens, however, that two comedians send in the same basic joke; many are topical and regard the events of the day. If that happens, the first to email gets paid, and the comedian who saw his jokes aired but did not see a check following knows that she was simply too late.

A central issue with all social norms is how to enforce them. Comedians say that despite feuds like those between Joe Rogan and Carlos Mencia, copying is not very prevalent today. That makes intuitive sense: there are thousands of comics performing regularly, and each show might contain several routines, plus various scattered funny asides. Given this volume, copying does seem infrequent. But it happens. And when a comedian believes she has been copied, she’s likely to confront the suspected offender. These confrontations are, for the most part, brief, civil, and effective. Persistent copying is limited to a few bad actors who are identified as such in the community.

To make the norms system work, though, comedians must have a reliable way to detect copying. And they do: detection is, for stand-up comedians, a community project. On the typical bill in a stand-up club there are usually several (sometimes as many as eight or ten) comedians. These comedians are often performing several nights a week, and watching other comedians. Given such wide exposure to their peers’ material, comedians are well placed to detect imitation. As one comedian put it,

They police each other. That’s how it works. It’s tribal. If you get a rep as a thief or a hack (as they call it), it can hurt your career. You’re not going to work. They just cast you out.

So what happens when a comedian thinks a rival has taken one of his jokes? The first step is to try to get a settlement. An aggrieved comic may confront the suspect, detail the similarities, and describe how long he has performed the joke. He might also state where the joke was performed and name witnesses. Sometimes the accused comedian admits fault and promises to stop doing the bit in question. This may happen, for example, in cases where the accused recognizes that he has borrowed from a rival without realizing it—something that the copyright law refers to as “subconscious appropriation.”

Or the two comics may conclude that they had each come up with the joke independently. If so, the comics might agree that they will simply not perform the same joke on the same bill, or that they will each tell it in different ways or in different parts of the country. One might volunteer to drop the joke as a courtesy. Maybe the joke fits one of the comedians’ acts better, or one of them is more passionate about the joke, “needs” the joke more, or simply tells it better.
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If an aggrieved comedian does not successfully settle a dispute and decides to pursue the matter, in most cases he will seek to impose two types of sanctions:
attacks on reputation
and
refusals to deal.
Two comedians described the process and the consequences:

The guy [who thinks he’s been copied] is going to try to get the [other comedian] banned from clubs. He’s gonna bad mouth him. He is gonna turn other comics against him. The [other comedian] will be shunned.

If you steal jokes, [other comedians] will treat you like a leper, and they will also make phone calls to people who might give you work. You want to get a good rep coming up so that people will talk about you to the bookers for the TV shows and club dates. Comics help other comics get work on the road.

Although these sanctions are informal, they are powerful. Credible allegations may impair or destroy a comic’s reputation among his peers, an asset that most comedians prize. Many comedians indicated that appreciation by their peers is very important. There are perhaps 3,000 working comedians in the United States. Still, many interviewees referred to stand-ups as members of a “tribe.” In this context, a reputation for imitation can be a barrier to career success:
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It’s a pretty small fraternity of people who make their living telling jokes. And so we kind of run into each other and see each other on TV and pass each other in clubs and hang out in New York together and you know, so there’s nothing more taboo in the comedy world, there’s no worse claim to make against somebody than “oh, he’s a fucking thief.”

You know, there are a handful of guys [who] just have a reputation for being thieves and for the most part it’s amazing to me, actually if you think about it, how rarely it happens, because it’s so professionally useful. A joke is such—it’s hard to really explain this—but, it’s a series of words that makes a room full of strangers laugh out loud consistently: it’s such a beautiful little gem. It comes along so rarely and it hopefully reveals something and it connects with them and it fits the voice and it’s short and concise and relatable and gut-laugh funny and it has to be a lot of different things at the same time.

So the development of those little phrases is a lot of work and when someone comes along and sort of lifts that idea from you and uses it, it’s aggravating—it can’t be described how aggravating it is. The thing that’s amazing to me about it is it doesn’t happen more often. Because the fraternity of comedy and the people who book comedy, they feel like a vested interest and so they also don’t want to book someone who would steal jokes. Even once you’re already really famous you really can’t successfully run around and steal jokes and have a career. It’s amazing that there’s enough sort of self-policing within the system.

If shunning and bad-mouthing fail to work, there is a second level of sanction. Comedians can make clear to booking agents that they will not appear in the same night’s lineup with someone they believe is a copyist. Intermediaries—club owners, booking agents, agents, and managers—may also refuse to deal with copyists. In particular, at least some booking agents, many of them former comedians themselves, disdain those who copy:

The guys who book clubs, with a few exceptions… they don’t want to book a guy who has stolen a joke. Very often, people associated with the comedy business either used to be comics or they think of themselves as funny people and they like the business…. And so for the most part those people do it for the love of the craft. And so again, there’s sort of a built in network of folks who are trying to do the right thing. I mean if
it’s a clear reputation [as a thief] and he’s trying to book himself as the middle at the Funny Bone in Omaha, [the agent] who books the Funny Bone in Omaha is likely to have heard of this and not take his calls. It could very directly hurt his career. It might end his career if he’s famous enough for doing it. It certainly will keep him down below the middle at Funny Bone level. Then he’s going to end up telling jokes at [low-class] bars and one-nighters who have a comedy night on a Tuesday, you know. And then it’s karaoke and the next night it’s trivia night. Some guys wind up in that sort of a circuit.

Reputational sanctions and refusals to deal are the most common retaliatory strategies. But if nothing else works, aggrieved comedians may retaliate with violence. As one comedian recounted, a comic may go up to another, who he thinks lifted a joke, and say “’Hey, that’s my material, and here’s the freshness date—when I wrote it. I’ve been doing it for years and suddenly it’s in your act and it has to be removed.’ About 90% of the comics will say, ‘OK, fine.’ But there is 10% out there who will say, ‘Oh yeah? Well, it’s mine now.’ And then the only copyright protection you have is a quick upper cut.”
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This kind of violence is rare. Yet many comedians support or at least refuse to condemn violent retribution. George Lopez did not try to hide the fact that he punched Carlos Mencia—in fact, he boasted about it on
The Howard Stern Show.
An article on the attack on Boston comedian Dan Kinno at the hands of several rival comedians hints at the identities of some of the attackers, who seem to have contributed to bringing the story to print.
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Kinno’s reaction is also telling: the accused comic is apologetic regarding the use of others’ material and at no point suggests that the violent “intervention” was out of bounds. Perhaps most important, the comedy community seemed to accept it. A comedy blog commenting on the Kinno incident suggested that “it’s refreshing to see the boys in Boston stand up for their intellectual property…. It’s admirable that they look out for each other and it’s entirely appropriate that they brought the hammer down on someone who so blatantly ignored the unwritten laws.”
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Social norms are certainly not a perfect means of controlling copying. For one, many comedians say that enforcement is difficult when the imitator is significantly more well known than the originator. Attempting to enforce the norms by refusing to appear on a club bill is not likely to work. Also, intermediaries are less likely to enforce the norms or refuse to deal when the
imitator is a famous comedian. Fame, in short, is at least a partial escape from the norms system.

There is another limit to the effectiveness of the anti-copying norm: it is not widely shared by the general public. Like consumers who don’t hesitate to purchase a cheap knockoff of an expensive dress, many comedians say that audience members do not care about originality or copying; the audience is there to drink, laugh, and have a good time. Not all comedians agree, though, and some suggest that a small slice of the audience is composed of aficionados who care about originality. Several comedians noted that these aficionados can be useful in enforcing the norm against joke stealing. Running afoul of them can hurt: fans talk, especially online, and a reputation for copying can spread to the more casual consumer of stand-up. And of course there are the comic “shaming” videos on YouTube, such as the video of Joe Rogan shaming Carlos Mencia that we began this chapter with, that work to spread accusations far and wide. In short, social norms are not always effective regulators. But of course legal protection is not always effective either.
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