Late one Saturday night in February 2007, Joe Rogan decided to take the law into his own hands. Rogan, a well-known comedian and host of the popular reality program Fear Factor, was on stage at The Comedy Store, a venerated club on the Sunset Strip in Los Angeles. Rogan had heard from fellow comedians that an even more famous stand-up, Carlos Mencia, had copied a joke from one of Rogan’s friends, a relatively obscure comedian named Ari Shaffir. Rogan spotted Mencia in the audience and called him out in front of the crowd—insulting him as “Carlos Menstealia” and accusing him of stealing jokes. Mencia rushed the stage to defend himself, and there began a long, loud, and profane confrontation.2
The Rogan/Mencia blow-up was caught on video, and if you can tolerate a bit of rough language, it is well worth watching.3 In the course of a high-volume duel of insults, with the angry comics standing inches from each other, Rogan laid out the details of Mencia’s alleged offense, including the joke allegedly lifted from Ari Shaffir* and other material Rogan accused Mencia of ripping from rival comedians George Lopez and Bobby Lee. Mencia angrily denied stealing, declaring that Rogan was a “whiny bitch” motivated by jealousy. As the argument grew more intense, Shaffir himself jumped on stage to support Rogan.
Eventually, the comics left the stage, but Rogan continued to press his case against Mencia in interviews. In the following weeks a number of other comics joined in the feud, most siding with Rogan. Perhaps more important, Rogan posted video clips of the confrontation on YouTube along with examples of Mencia’s alleged joke thievery. These videos have been viewed more than 5 million times.4
The last number should catch your attention. Five million views for You-Tube clips recording a public argument between two comedians over copying jokes. What’s going on here?
In this chapter, which draws on a two-year study that one of us (Sprigman) conducted with University of Virginia colleague Dotan Oliar,5 we look closely at how creativity and copying work in the world of stand-up comedy. The story is fascinating on its own. More broadly, the world of comedy provides important insights into how some creative communities develop informal and extra-legal rules of conduct—which we have referred to in this book as social norms—to control copying and limit the harms it may cause. For many decades copying was an accepted part of the comedy world. But since roughly the 1960s, when stand-up comedy began to move away from strings of one-liners and toward longer, more personalized routines, social norms have played an important role in regulating copying among comedians.
Comedy differs in some important ways from the worlds of cuisine and fashion we described in the previous two chapters. Much more so than chefs, comedians are fairly united in their opposition to copying. More so than the fashion industry, the comedy industry has a strong set of social norms that effectively constrain copying. But as is true of both food and fashion, legal rules about copying play almost no role in comedy. While jokes and comedy routines are technically subject to copyright protection—another area of difference with food and fashion—as a practical matter copyright law is almost useless. (And patent simply does not apply.) Cuisine, clothing, and comedy, in short, are all arenas in which copying is effectively uncontrolled by the law. Yet in all three, creativity thrives.
We explain why legal rules are irrelevant to comedians and how, despite this, comics remain so creative. What the story of comedy shows is not so much that innovation can occur despite extensive imitation—though that was true in the early days of stand-up comedy—but that is the law is not the only way to restrain imitation. Like fashion and food, comedy demonstrates that legal rules about copying are not always necessary for creativity to thrive.
Before we examine how comedians’ system of social norms works, however, we have to pull back a bit—to the beginnings of modern stand-up comedy, and, along with it, the once very common practice of joke copying.
A VERY BRIEF HISTORY OF STAND-UP COMEDY
The roots of American stand-up comedy can be traced to variety theater and especially vaudeville, America’s primary form of entertainment in the late 19th and early 20th centuries. A ticket to a vaudeville show bought a stew of singing, dancing, juggling, acrobatics, magic, animal performances, pantomime, and comedy. Comedy in vaudeville was presented in a theater format, where funny elements would be intertwined with drama or dance or singing, and occasionally with other talents such as magic or throwing lassos.
Straightforward joke telling was not unknown in vaudeville, but it was not common until the late 1920s, when vaudeville moved closer to modern stand-up by placing increasing emphasis on the character of the “master of ceremonies,” or “emcee.” The emcee’s short jokes (they had to be brisk so as to not slow down the quick flow of the bill) set the standard for the post-vaudeville generation of “one-liner” comics. Early vaudeville performers freely borrowed funny material from other performers. Originality was not a priority.
Vaudeville declined in popularity during the 1930s for various reasons, including the impact of the Great Depression and, most important, the emergence of radio and film. Vaudeville performers began to move to these new media, as well as to independent stand-up shows in nightclubs, casinos, and resorts concentrated in areas such as upstate New York’s “Borscht Belt.”
Comics like Milton Berle, Henny Youngman, Jack Benny, and Bob Hope represent the transition from vaudeville, where comedians played a relatively minor role in the greater variety show, to a new form, where stand-up comedy was offered as a stand-alone performance. These performers carried with them much of the vaudeville aesthetic—fast-paced gags, wordplay, remnants of theater (song, dance, and costumes), and physical humor. This was the golden era of the one-liner. The basic unit of humor was the joke, and comedians loaded scores of them into their quiver and shot them, rapid-fire, at the audience.
Phyllis Diller, perhaps the fastest worker in the post-vaudeville cohort, could keep up for her one-hour act a constant pace of 12 punch lines a minute. Diller and her fellow post-vaudeville comics worked to master the art of timing the audience and feeding them a new zinger—or perhaps just as often a clinker—as soon as the laughs or groans from the previous joke were starting to wane. This style of stand-up, characterized by strings of jokes that ranged over a wide variety of topics and had little connection to one another, was dominant until the mid-1960s, and remains a part of the comedy world today.
Participants in this seminal era of stand-up had to have a large number of jokes at hand. Not surprisingly, many maintained significant joke archives.6 Phyllis Diller had over 50,000 jokes, carefully organized by topic.* (The Diller archive is now at the Smithsonian Museum.) Approximately half of the jokes in Diller’s file were obtained from one of the large groups of writers she used. Looking at the file, it appears that she freely borrowed from other sources, such as comic strips. For example, a number of jokes about Diller’s dysfunctional marriage to her fictional husband “Fang” seem to have been inspired by the comic strip, “The Lockhorns,” which she followed obsessively. The Diller joke files contain hundreds of “Lockhorns” panels mounted on index cards7
In this era, straightforward copying of jokes, as well as the “refinement” of other comedians’ materials, was still prevalent. A history of Borscht Belt “Toomlers,” or joke-slingers, notes that “[Henny] Youngman’s style of delivery kept him joke broke. Like all Toomlers his need for new, fresh material was complicated by the fact that he worked to repeater guests season after season. The usual method of obtaining material… was to lift from the best. Any opening day at Loew’s State or the Palace found a dozen comics in the audience, pencils akimbo.”8
Milton Berle was one of the most famous practitioners of the one-liner era, and also such a well-known joke thief that rivals referred to him as the “Thief of Bad Gags.” Berle openly admitted to a penchant for copying, and even made jokes about it—for example, Berle’s famous gibe, made on stage at the Beverly Hills Friar’s Club, that the prior act “was so funny I dropped my pencil.” As Berle explained in 1948,
copying was just how business was done: “You say that I, Milton Berle… steal from Bob Hope? You don’t understand, that’s just high finance…. I take a joke from Bob Hope… Eddie Cantor takes it from me… Jack Carson takes it from Cantor… and I take it back from Carson…. [T]hat’s the way it operates, it’s called corn exchange.”9
Around the time of the Kennedy presidency, however, stand-up comedy began to make a significant turn. Reflecting larger trends in society, and the growing presence of the baby boomers in American cultural life, a new generation of comics began to explore politics, race, and sex as part of a general move toward increasingly personalized humor. Many comics began to shift from one-liners and short jokes to longer monologues, with a more distinct narrative thread that reflected the individual comedian’s life and point of view. Stock, shared jokes on topics like mothers-in-law were increasingly out; individual observations and peccadillos, sometimes woven into long stories, were increasingly in.
Mort Sahl and Lenny Bruce led this new wave of work. Sahl’s act was explicitly political and intellectual; Bruce’s profanity-laced commentary pushed at social convention, especially race, religion, and sex. Sahl and Bruce were hugely influential; their descendants comprise the majority of working comedians today. And like those seminal artists, most of the current generation—which includes comics as different as Jerry Seinfeld, Chris Rock, Zach Galifianakis, Patton Oswalt, Lewis Black, Louis C.K., Margaret Cho, and Sarah Silverman—work within well-developed comic personalities.
The mainstream of post-1960s comedy, in short, embraced a more conversational style with jokes and funny asides woven into a very personal monologue.* One result is that there is greater variety of styles in comedy than ever before. Whereas earlier comics tended to stick to prescribed themes and types of jokes, today’s combine a much greater diversity of approaches and subjects into their routines. And whether the stage personas of comedians are real or invented, routines often reflect an established personality that fans come to love and expect.
Alongside the shift in the last 50 years in how comedy is performed was a parallel shift among comedians in their views about creativity. The copying culture of Borscht Belt comedians was a victim of this new style. Copying was commonplace in the 1940s and 1950s. But it appears to be far less common today—or at least, much less accepted by comedians themselves. Today, comedians who rely on generic joke telling are often derided as “hacks.” Originality is prized—indeed, it is the first criterion by which comedians judge other comedians—and imitation is condemned. As we explain below, this shift in views about copying is probably not unrelated to the shift in comedic style that occurred in the same basic period.
One other change is worth noting. As the comedy industry changed in both style and attitude from the 1960s onward, it also grew much larger. A national circuit of comedy clubs spread to most every major city and quite a few smaller towns. Comedians began to release recordings of their performances—and some of these sold massively. Comedians also gained more and more television exposure, both from late night shows and regular sitcoms. In more recent decades, this exposure accelerated, to the point that today we see not only channels like HBO carrying a lot of stand-up, but even a dedicated cable channel, Comedy Central, that features many comedians in many formats. Comedy, in short, is everywhere.*
COPYRIGHT’S IRRELEVANCE TO STAND-UP COMICS
Jokes and routines are literary works, a category that copyright law clearly protects. And yet, despite the many examples of joke theft that exist, there has been only a handful of lawsuits over copying—and none that we could find in the past half-century involves a dispute between stand-up comics. There is also no evidence of threatened litigation or settlements between stand-ups.
Why does the law seem to have so little relevance in the comedy world—even back in the days when copying jokes was as common as breathing? One reason is the expense of enforcement. Comics considering a copyright lawsuit quickly discover that legal fees often mount into tens and even hundreds of thousands of dollars. Yet there are other, arguably more significant, obstacles to a successful suit. The most important of these is copyright’s distinction between original expression, which is protected, and the creative ideas underlying the expression, which are not.
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?”10
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?”11
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.
MODERN STAND-UP COMEDIANS AND THEIR SOCIAL NORMS
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 o
ut 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:
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