The Knockoff Economy (17 page)

This idea-expression distinction is central to copyright law. What this means for comedy is that the particular wording of a bit is protected, but the underlying idea or premise that makes it funny is not. Copyright law permits a rival comedian to take that funny premise, reword it, and create his own version of the joke. This principle of copyright law leaves comedians with little practical protection, because often it is the idea or premise conveyed by a joke that causes the audience to laugh, and that premise can be expressed in several different and equally funny ways.

Another important barrier is the difficulty of proving that another comic actually engaged in copying, rather than creating his or her joke independently. Unlike patent law, which creates monopoly rights that are good against all later-comers to a patented invention (whether they copied that invention or not) copyright
only protects against actual copying.
In most creative fields, this usually isn’t an issue in practice; it is virtually impossible to imagine that two authors have written the same play, or two painters produced the same painting. But it is a harder issue when the material in question is a joke. Jokes often are based on premises that are sufficiently topical that a number of comedians will come up with very closely related bits based on the same premise at about the same time.

A good example of this is the very joke over which Joe Rogan went to war with Carlos Mencia. At least four comics have told a similar joke about the
construction of a border fence between the United States and Mexico. The first, Ari Shaffir, was recorded telling the joke at a “Latin Laugh Festival” in March 2004:

[California Governor Arnold Schwarzenegger] wants to build a brick wall all the way down [to the] California/Mexico border, like a twelve-foot high brick wall, it’s like three feet deep, so no Mexicans get in, but I’m like “Dude, Arnold, um, who do you think is going to build that wall?”
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Here are three other comics telling different versions, all in 2006:

Carlos Mencia (January 2006):
Um, I propose that we kick all the illegal aliens out of this country, then we build a super fence so they can’t get back in and I went, um, “Who’s gonna build it?”

D. L. Hughley (October 2006):
Now they want to build a wall to keep the Mexicans out of the United States of America, I’m like “Who gonna build the motherf***er?”

George Lopez (November 2006):
The Republican answer to illegal immigration is they want to build a wall 700 miles long and twenty feet wide, okay, but “Who you gonna get to build the wall?”
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Comedians admit that it is often hard to say whether one comic copied another or whether both converged on the same idea—a fact that makes lawsuits unlikely to succeed. The “Mexican border fence” joke is an apt example. Inspired by events in the news, many comedians working independently could have written similar jokes based on the same premise.

The bottom line is that legal rules against copying seem like a useful tool, but in practice they hardly matter in the comedy world. Yet, while contemporary comedians often hash out funny ideas cooperatively, creating substantial scope for imitation, they value originality and oppose copying. The way they keep this all together is through an unusually well-developed system of social norms. These norms are entirely private and informal. But they restrain copying, allowing for some kinds but not others. And although there is no legal basis for these norms, they are surprisingly effective.

In the study that is the principal source of what we write here, one of us (Sprigman) and UVA law professor Dotan Oliar interviewed many successful
comics about originality and innovation, and especially about what comedians do when they believe that a fellow comic has lifted a bit from them.
¹²
In other words, the study sought to find out what the norms were and why they existed. Some of these norms mimic the rules of copyright law: for example, the major norm that prohibits publicly performing another stand-up’s joke or bit. Others, however, deviate from the ordinary rules of copyright. For example, copyright protects expression but not underlying ideas, but comedians’ norms protect expression
as well as ideas.

We will dig into these norms in a moment. But it is important to note that comedians’ norm system includes informal but powerful punishments. These start with simple bad-mouthing and ostracism. If that doesn’t work, punishments may escalate to a refusal to work with the offending comedian. Occasionally, comedians threaten joke thieves and even beat them up. None of these sanctions depend on legal rules—indeed, when comedians resort to threatening or beating up other comics, that’s obviously against the law. Yet these tactics work. Within the community of comedians, allegations of copying can cause serious harm to the reputation of a comic—remember the example involving Dane Cook from the introduction to this book?—and may even destroy a showbiz career.

The upshot is simple but profound: using informal norms, comedians are able to limit copying. They assert ownership of jokes, regulate their use and transfer, impose sanctions, and maintain substantial incentives to invest in new material. As with fashion designers and chefs, this story presents a puzzle for the monopoly theory of innovation. Since there is no effective legal protection against copying jokes or routines, the monopoly theory predicts that copying should be common and creativity should dry up. Yet thousands of stand-ups keep cranking out great new material night after night.

If you talk with comedians, they seem to agree on one thing: Carlos Mencia steals a lot of jokes. We began this chapter with one well-known example—Mencia’s altercation with Joe Rogan. Here’s another. On his 2006 album “No Strings Attached,” Mencia performed a bit about a devoted father teaching his son how to play football:

He gives him a football and he shows him how to pass it. He shows him every day how to pass that football, how to three step, five step, seven step drop. He shows him how to throw the bomb, how to throw the out, how
to throw the hook, how to throw the corner, he shows this little kid everything he needs to know about how to be a great quarterback, he even moves from one city to the other, so that kid can be in a better high school. Then that kid goes to college and that man is still, every single game, that dad is right there and he’s in college getting better, he wins the Heisman trophy, he ends up in the NFL, five years later he ends up in the Super Bowl, they win the Super Bowl, he gets the MVP of the Super Bowl, and when the cameras come up to him and say “you got anything to say to the camera?” “I love you
mom
!” Arrrgh… the bitch never played catch with you!
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Compare this to a bit from Bill Cosby’s 1983 hit album “Himself”:

You grab the boy when he’s like this, see. And you say, “come here boy”—two years old—you say, “get down, Dad’ll show you how to do it.” “Now you come at me, run through me,” (boom!). “There, see, get back up, get back up—see you didn’t do it right now come at me,” (boom!). See, now we teach them—see now you say, “go, attack that tree, bite it, (argh!) come on back, bite it again,” (argh! argh!). You teach them all that: “tackle me!” (bam!). And then soon he’s bigger and he’s stronger and he can hit you and you don’t want him to hit you anymore, and you say, “alright son.” Turn him loose on high school and he’s running up and down the field in high school and touchdowns, he’s a hundred touchdowns per game and you say, “yeah, that’s my son!” And he goes to the big college, playing for a big school, three million students and eight hundred thousand people in the stands—national TV—and he catches the ball and he doesn’t even bother to get out of the way, he just runs over everybody for a [touchdown] and he turns around and the camera’s on him and you’re looking and he says, “hi
mom!”
Ah… you don’t mind that. You know who taught him.
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Mencia has denied copying Cosby’s football routine—indeed, he’s denied ever hearing Cosby’s routine prior to performing his. But that’s hard to believe. Cosby is an icon in the comedic community, and
Himself
has sold a huge number of copies and is still on sale 25 years after its release. Given these facts, it’s unlikely that Mencia never heard it. And given the striking similarity of the two routines, it’s a fair inference that Mencia copied. Cosby, who has denounced copyists but who has also admitted to having once copied comedian George Carlin,
¹⁵
has taken no action against Mencia.

Comedian George Lopez has not been as generous. In 2005, Lopez accused Mencia of incorporating 13 minutes of his material into one of Mencia’s HBO specials. And Lopez retaliated: he grabbed Mencia at the Laugh Factory comedy club, slammed him against a wall, and punched him.
¹⁶

Yet if a hard punch is a legitimate response among comics to joke stealing, then perhaps Lopez should also beware. Speaking at the 2008 Grammys, Lopez noted how pleased he was to see a woman (Hillary Clinton) and an African American (Barack Obama) competing for the Democratic presidential nomination. He worried, however, that the first female or black president might be assassinated. The best thing to keep them safe, he suggested, would be to choose a Mexican vice president. “Anything bad happens,” Lopez promised, “Vice President Flaco will live in the White House.”

Funny, but eight years earlier, in his 2000 HBO special “Killing Them Softly,” Dave Chappelle declared that he would not be afraid if he were elected the first black president, even though he knew that some people would want to kill him. The reason? Chappelle would choose a Mexican vice president “for insurance.” Chappelle’s punch line: “So you might as well leave me and Vice President Santiago to our own devices.”
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Did Mencia copy Cosby and Lopez? Did Lopez copy Chappelle? We don’t know for sure: in these, as in many other cases, it is possible that one comedian has imitated another, or that each came up with the joke independently. There are scores of examples that suggest that a joke has been copied—but the evidence is rarely definitive.

The “Mexican Vice President” joke helps to explain why there are fewer lawsuits over imitation than one might otherwise expect. It can be hard to figure out who is an originator. But it’s still a puzzle why there are none, since not all—or even most—comedy is based on topical issues like elections. The utter absence of suits is not just a result of copyright’s poor fit. It is also a consequence of comedians’ social norms system. Let’s get more specific about what these norms are.

The most important norm is a basic one: a widely shared taboo against copying. This norm is so fundamental that a popular guide for new stand-ups,
The Comedy Bible,
puts the following as the first of its Ten Commandments
to the novice: “Thou shalt not covet thy neighbor’s jokes, premises, or bits.” Other “how to” guides convey the same message.
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One obvious question is what exactly this norm prohibits. Does it apply only to exact copying, or all the way to imitating another comic’s funny idea
?
As we’ve seen, standard rules of copyright prohibit the use of expression that is “substantially similar” to a protected work, but do not protect the underlying idea. The social norms of comedy do not draw the same distinction. They protect both expression
and
ideas.

One comedian illustrated this with an example of a joke about a person having sex in a church. The idea is so general, the comic said, that it should remain open to rival comics. Add, however, even a minor bit of specificity (the comedian posited a joke about a person having sex in a church who is caught by a priest) and both the particular joke embodying that idea, and the idea itself, are off limits to anyone else. Along these same lines, many comedians say that borrowing even general premises—anything that is not “stock” or “commonplace”—is objectionable.

In other words, comedians’ norms system extends to the type of behavior usually thought of as
plagiarism.
From a legal perspective, copyright infringement and plagiarism are quite different. Copyright infringement involves the unauthorized copying of protected expression. Plagiarism is a broader concept: it means either the unattributed copying of another’s expression (which may also violate copyright law), or unattributed copying of another’s
ideas
(which would not violate copyright or, in the vast majority of cases, patent). Of course, copying ideas without proper citation is regarded as a serious offense by certain institutions, such as universities and publishing companies, and certain social groups, such as writers or academics. But these rules against plagiarism are not legal rules—no one can be sued for plagiarizing an idea. Rather, the punishments for this sort of plagiarism are either found in institutional rules like university codes of academic conduct, or they are part of the informal norms of some particular professional group (such as journalists).

Many comedians use the word “plagiarism” to refer to the copying of funny ideas. And, interestingly, they do this whether the idea is attributed to its creator or not. That is a significant step further than the usual approach to plagiarism, which applies only where the original author
is not credited.
Think of academic writing, where it is fine to copy another idea
as long as the author is credited in the text or even in a footnote. (Indeed, academics like us love when someone copies our ideas—as long as we get the citation).

Why would comedians take this extra step and bar even the copying of attributed ideas? Maybe it is because audiences want new, fresh material every time they see a favorite comic, and so a comic who tells another comic’s joke, even if credited, hurts the originator by over-exposing the material. And maybe (and a related point) it is because comics are committed, as a community, to originality as the defining characteristic of a comic. A person who makes a living telling other people’s jokes is simply not a stand-up comedian—at least according to other stand-ups.