Who Owns Comedy?

PETER: We’ve spent most of the hour today looking at intellectual property that does have some sort of government protection. But we’re going to end the show with something a little different.

CARLOS MENCIA: Yes. Go ahead. Tell everybody–

JOE ROGAN: You steal material–

CARLOS MENCIA: What material?

JOE ROGAN: Constantly.

CARLOS MENCIA: What material?

PETER: OK. So what you’re hearing is an argument between comedians Carlos Mencia and Joe Rogan, recorded on stage in 2007. Mencia had built up a reputation for breaking one of the cardinal rules of stand up comedy– don’t steal jokes.

CARLOS MENCIA: Do you really think that a Jewish guy came up with that joke [BLEEP]? Do you really think that?

[CHEERING]

ED: In stand up comedy, there’s never been a practical way to protect your intellectual property. Suing someone for joke theft is expensive. And it’s not always clear what elements of the joke are even fair game for copyright.

BRIAN: Chris Sprigman is a law professor. And along with as co-author, Dotan Oliar, Sprigman looked into how stand up comedians develop their own ways of protecting intellectual property.

His research starts in what has to be the best archive in America.

CHRIS SPRIGMAN: I spent a couple of days digging around in Phyllis Diller’s joke file that sits in the Smithsonian. It’s a cabinet full of about 50,000 jokes on index cards. And if you look through that joke file, there were jokes that she wrote. There were jokes that she bought. And there were jokes that, for lack of a better word, she stole.

PHYLLIS DILLER: My husband is usually absolutely no help because he boozes. He gets so high he won’t drink without a net under him.

[LAUGHTER]

BRIAN: Wasn’t her fake husband named Fang?

CHRIS SPRIGMAN: Yeah. She had a fake husband named Fang who she told a lot of jokes about. A lot of which, by the way were stolen from a comic strip that appeared for many years called “The Lockhorns,” which was about a warring couple.

BRIAN: Remember it.

CHRIS SPRIGMAN: Right. She’s got hundreds and hundreds of these “Lockhorns” panels cut out of the newspaper and pasted onto index cards. And if you know Phyllis Diller, you can hear those “Lockhorn” panels reflected in her jokes about her fictional husband, Fang.

PHYLLIS DILLER: He spent one night in the front yard trying to kill the garden hose.

[LAUGHTER]

BRIAN: Phyllis Diller, as I recall, appear on Ed Sullivan.

CHRIS SPRIGMAN: Yes.

BRIAN: So if someone she stole that joke from is listening to Ed Sullivan, would he or she be a little pissed off?

CHRIS SPRIGMAN: Well, possibly. But the norms about who owned jokes are very different before, say, the early 1960s. The first style comedy was really based around the joke. So these are joke slingers. They’re one liner artists. They’re telling joke after joke after joke.

They adapted jokes. They took them and made them their own. They didn’t think of themselves as stealing. They just thought of themselves as telling jokes in the canon.

So what’s interesting to me is the difference between the post-vaudeville environment of free appropriation, comedians basically engaging in what they used to call the corn exchange, whereby they stole jokes, they traded them.

[LAUGHTER]

CHRIS SPRIGMAN: Verses now, where they don’t. Where they have a norm system that pretty fiercely guards individual ownership of jokes.

BRIAN: Tell me what changed in the early ’60s, mid-60s.

CHRIS SPRIGMAN: So in the early and mid-60s, you have a generation of comedians– so Lenny Bruce being probably first among equals. Then Mort Saul being another.

These are comedians who reject the post-vaudeville model. They are not just telling interchangeable jokes. They are investing in individualized material.

So if you listen to Lenny Bruce, his material is very tied to his particular personality, his character.

LENNY BRUCE: I want to have you over to the house, but I got a but of a problem now. And I don’t want you to think I’m out of line. But I got a sister. And I hear that you guys, you know– it’s my sister.

And– well, I’ll put it to you a different way. You wouldn’t want no Jew doing it to your sister, would you?

[LAUGHTER]

CHRIS SPRIGMAN: That style of comedy, I would say, is dominant, is almost completely dominant today. So I think of a modern comedian. I often use the example of Sarah Silverman. Because people know her. She’s accessible.

BRIAN: Mmhmm.

CHRIS SPRIGMAN: So her jokes are absolutely tailored to a character that she plays on stage. This character of the morally obtuse, just completely not clued in monster.

SARAH SILVERMAN: They say, you know, strippers, you know, they end up being in porn. And, you know, it’s like a gateway job to porn. And–

[LAUGHTER]

SARAH SILVERMAN: I don’t know. What are you going to do? I’d never do it. And I’ve– I could if I wanted to. I’ve been approached.

[LAUGHTER]

SARAH SILVERMAN: Or if I did it would be purely, you know, for political reasons. Because I do not think there are enough Jewish women represented in porn.

[LAUGHTER]

CHRIS SPRIGMAN: So this is the new style of comedy. And along with this new style of comedy cam a new set of attitudes toward comedians taking other comedians’ jokes.

And when comedians hear other comedians doing what they think is stealing, appropriating others’ material, they react. They confront. And this is something very different, as well, from what you saw in the day of Phyllis Diller.

BRIAN: So, the million dollar question. How do they react? What do they do?

CHRIS SPRIGMAN: Most often, just like in any other dispute, these things get settled. So the comedian agree– who’s told the joke– agrees not to tell it. Or to tell it differently so that it’s recognizable as a separate joke. Or to buy the joke, lock, stock, and barrel. That occasionally happens.

But if there is no agreement, then you see the community of comedians imposing penalties. So the basic penalty– and this is surprisingly effective– is bad mouthing.

So if you think about it, comedians are very good at bad mouthing on the whole.

BRIAN: Yeah, it’s their job. Stock and trade.

CHRIS SPRIGMAN: And it’s very unpleasant. Let me give you an example. Robin Williams, who was accused of stealing a lot of jokes when he was a stand up comedian– he became a movie star, so stand up wasn’t quite as important to him later in his career.

But he said in an interview in Playboy Magazine that he stayed out of comedy clubs. Because every time he went into a comedy club he was given dirty looks and bad mouthed. And it was just–he couldn’t take it. So there’s an example of someone actually driven away from the craft because of his reputation for stealing jokes.

And I’m sure Carlos Mencia– in fact, I know that Carlos Mencia attracts a lot of the same kind of attention these days.

BRIAN: If we step back from the details and think about the purpose of copyright law, which presumably is to inspire and encourage creativity and to reward creativity, do you think that creativity is better served for these comedians through these informal mechanisms than it would be through a more formal regime of copyright?

CHRIS SPRIGMAN: The justification for an IP system– and, of course, comedians have an IP system. It’s just not a formal one. The justification is that without it, no one will invest in the creation of new art, literature. Of which jokes are a subcategory.

I think if you look at comedy, it doesn’t ring true. Before there was this informal norm system that basically gives IP rights to comedians, there was plenty of material. After the norm system, there was plenty of material. What really changed was the kind of material.

BRIAN: And even there, by your own account as I understand it, the change in comedy in the mid-60s was not driven by a change in the IP self-enforcement. It was the other way around.

CHRIS SPRIGMAN: Yeah. So I think cultural changes in America– so the cultural changes that accompanied the ’60s, the rise of individualism, the rise of the counterculture. This is what changed comedy. I think the norm system springs up in the wake of that.

And then the norm system helps to solidify those changes.

BRIAN: Right.

CHRIS SPRIGMAN: It helps to make them sensible.

BRIAN: And it holds it in place.

CHRIS SPRIGMAN: Exactly.

BRIAN: So perhaps this obsession with subsidizing creativity, if you will, is the wrong question to be asking in the first place.

CHRIS SPRIGMAN: Well, it depends on what kind of creativity we’re talking about. So, if we’re talking about new drugs, new pharmaceuticals– those are so expensive to invent. They’re so expensive to get through clinical trials.

There, I think, the conversation about how to subsidize the creation of these things is a very important conversation. When we’re talking about things like jokes or fashion designs or even songs or poems or academic work or really pretty much all other types of creativity I can think about which tend to spring out of people regardless of what you do, the effect of IP, I think, is more to shape the way our creative industries provide those things, to shape the kind of material that we get, than it is to ensure that we get it.

I think we’re going to get it. The question is, precisely what kind of paintings do we get? Precisely what kind of jokes? And who provides them? Is it more individual provision? Or is it more corporate provision?

These are the questions that I think IP raises. They’re interesting questions. But they’re not the kind all or nothing question about whether we get creativity.

[MUSIC]

BRIAN: Chris Sprigman is a professor at the University of Virginia. His book is Knock Off Economy. Special thanks to Dotan Oliar for his work on the comedy research.

And that’s going to do it for today, folks. In case you were wondering, this show, like all our shows, is available to download for free, no permission necessary, at our website backstoryradio.org.

PETER: Thanks for listening. And don’t be a stranger.