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.”20
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.21 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.”22
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.*
ANTI-COPYING NORMS AND INNOVATION IN COMEDY
That comedians have developed their own private, extra-legal system of social norms about copying is fascinating. But this norms system also sheds light on the central question of this book: how does imitation influence innovation? Three points jump out.
First, the comedy world illustrates that, at least in some instances, social norms can be an effective stand-in for legal rights. The behavior of chefs we described in our chapter on cuisine is certainly guided, to some extent, by social norms, yet with the exception of the high-end Parisian chefs studied by von Hippel and Fauchart, the norms among chefs about copying and ownership are relatively weak and loose. In comedy, by contrast, the norms are much stronger and more widely shared. Social norms about copying appear to be weakest of all in the fashion world.
We suspect this may reflect something about the organization of creativity in these three fields. Comedians are essentially sole proprietors, typically working alone; chefs work as part of small teams; and fashion designers are (usually) embedded in firms that range from a dozen people to hundreds or even thousands of employees. Social norms about creativity probably work best, and are most likely to take root, in contexts that are most social—that is, where individuals are the key actors and where they rub up against each other frequently. This notion is at least consistent with the pattern we observe in the three fields we have explored so far in this book.
The success of social norms in comedy does not mean that intellectual property rules are unnecessary to stem copying in other creative arenas. Yet it does show that these rules are not necessary in all creative arenas. Like fashion and food, legal rules on copying are, as a practical matter, absent in comedy. Yet creativity is thriving.
Second, the fact that comedians have created their own—and often quite different—system of rules suggests that even if the practical barriers to litigation over jokes could be overcome, the existing rules of copyright are not so attractive to comedians. Earlier we detailed several areas where the norms of comedy deviate substantially from the basic structure of copyright. We think this underscores a broader point about good policy: existing IP law is a one-size-fits-all system, and a more focused, industry-specific set of rules might be more effective.
Indeed, we will go one step further: some industries, like fashion and food, do very well with no real rules about copying. We will describe more such industries later on in this book. And that is one reason these industries have neither developed powerful norms system nor successfully convinced Congress to change the law to bar copying. (As we noted in Chapter 1, however, there have several such efforts over the years with regard to fashion—none successful.)
Third, comedians’ norms suggest that rules about ownership often have an important effect on what kind of creativity is produced, as well as on how much is produced. In other words, the rules don’t just regulate copying; they shape the kinds of works that get created. These observations raise not just economic but cultural questions.
Consider the history of stand-up recounted in this chapter. During the postwar heyday of the one-liner, there was no strong norm against imitating another comedian. In fact, comedians copied one another shamelessly, joking about it as they did so. And the type of comedy prevalent then permitted and even encouraged this practice. Comedians were telling largely interchangeable generic jokes that a wide audience could appreciate. Comics differentiated themselves by their performance style: who delivered the joke better, timed the audience better, was able to compile and assemble from a repository of jokes a subset that fitted the particular audience. Many comedians based their acts on a blend of stock jokes, purchased jokes, and copied jokes. There was not much investment in the kind of personalized material that dominates today. Given the system at the time, this made sense. One-liners were easy to copy; delivery, however, was relatively more difficult to steal. Post-vaudeville comedians were incentivized to invest in their delivery, not in writing new jokes.
Now compare those comedians with their modern counterparts. Contemporary comics invest far more in original and personal content. The medium is no longer focused on reworking preexisting genres like mother-in-law jokes. Nor is it just about slinging one funny joke after another. Comedy today is more personal, devoted more to storytelling than to one-liners, and more consistent with a real or assumed stage persona. In short, comedians in the post-Lenny-Bruce era invest in a personality. They create a comedic brand of sorts. And to protect that investment and that brand, they have developed a system of social norms that punishes copying. At the same time, comedians invest less in some of the performative aspects of their work: many today stand at a microphone, dress simply, and move around very little, with none of the more elaborate costuming, mimicry, musicianship, and play-acting that characterized the post-vaudeville comics.
The way in which comedy is produced has also changed. Fewer present-day comedians purchase jokes than in the past. This also makes sense, because the risk inherent in buying and selling has likely gone up. From the comedian’s perspective, she h
as to look for writers who can write well for her unique persona. There are fewer writers who can do that than can write generic jokes. And from the writer’s perspective, he must now spend time to get to know his client’s act before writing for her (which also raises cost) and has a much lower chance of recouping his investment if the deal falls through (since few other comedians are likely to be interested in a joke tailor-written for another).
It is important to pause here to clarify that we think it is probably impossible to prove that the shift to personal, narrative stand-up comedy caused the rise of the norms system (or for that matter whether the causal arrow points in the other direction). But this does not mean that the changing style of comedy and the rise of norms about copying are not linked. The norms system emerged and won increasing adherence alongside the growing transformation of comedy toward personal, point-of-view driven humor. Each probably contributed to the evolution of the other.
One comedian captured this in a way that illustrates a view many others espoused in interviews:
Yes, I must say I got at least three occurrences where I’ve seen people do one of my jokes and it happens less frequently now because I’ve become a comedian who’s hard to copy. As I’ve grown as a comedian myself I have become more and more original. So if someone were to steal it nowadays it would be more obvious … The number one reason that I think I did it was, well, maybe two reasons, was to be unique. Because in order to be successful in standup comedy when you’re fighting against a thousand other guys… I needed to start talking about things that not everyone was talking about. And as a side effect that also makes it more difficult for people to steal from me, and made it more difficult for someone to accuse me of stealing some topic.
[N]ow my jokes are longer too…. They generally are two or three minutes long and made up of several paragraphs and so if someone were to steal it word for word it would be quite obvious. It would be incredibly obvious that they had stolen three paragraphs out of my act.
The more entrenched the norms system becomes, the more it makes sense for comedians to do this. And the more unique their material is, the easier it is to enforce and maintain a norms system.
Now, it may be that in the past creativity in jokes was more limited, but comedy was also more accessible and communal. Mother-in-law jokes, one-liners, and puns were the types of jokes that all kinds of listeners found easy to appreciate and retell to others. This kind of comedy may have been less personal and inventive, but it was more social. Today, stand-up is more innovative and personalized, but it is also less inclusive and not as easy to recount at your cocktail party.
In short, rules about copying are not just about promoting more or less innovation; they also shape what kind of innovation occurs. And this suggests that when we think about the rules governing creativity, we also have to think about what sort of innovation we really want.
CONCLUSION: THE MAGIC OF NORMS
Comedians copying jokes are not the only group of creative performers to worry about rivals imitating their routines. Nor are they the only ones to develop norms to regulate them. There is another group of performers—one that’s been around much longer than stand-up comedians—that relies heavily on norms as a way of protecting their creativity. A study by a young lawyer, Jacob Loshin, reveals how magicians use social norms to help keep the secrets behind their tricks from being disclosed.23
The story of magicians is different from that of comedians. Magicians worry less than do comedians about borrowing: they are, on the whole, much more willing to share their secrets with other magicians, whom they view more as colleagues than rivals. Indeed, magicians often publish instructions for performing specific tricks in trade journals such as Genii, Magic, and The Linking Ring. and magicians who invent and share tricks enjoy a special cachet within the fraternity. And because their needs are different, their norms are also different.
Perhaps not surprisingly, given how long magicians have been developing their craft, a lot of creativity in magic is of the tweaking variety—some of the most skilled and inventive magicians gained fame by refining the execution of tricks that have been known for decades, or sometimes centuries.24 Nevil Maskelyne, one of magic’s old masters, claimed that “the difficulty of producing a new magical effect is about equivalent to that of inventing a new proposition in Euclid.”25 Whether it’s because there’s little that’s completely new, or for some other reason, magicians seem to worry less than comedians do about imitation.
They do, however, worry a lot about traitors—those magicians who expose the secrets behind a trick to the public. Once a trick is exposed in this way, its value as “magic” is destroyed, and this harms everyone in the industry. For this reason, magicians’ norms are focused mostly on punishing magicians who expose tricks to the public—even if the trick is the exposer’s own invention.
Exposure is certainly harmful to the world of magic, though normally we think of the exposure and spread of ideas as a good thing. Indeed, usually the law tries to encourage it. A good example is patent, where part of the bargain in obtaining a patent is revealing the “secret” that makes the invention work. With magic tricks, however, exposure can destroy the secret and reduce or even eliminate the value of the trick. Tricks must be mysterious to work as magic.
So why don’t magicians use the law to prevent exposure of their tricks? The answer is simple: as a practical matter, IP law is no friendlier to magicians than it is to comedians. The procedure describing the way a trick or illusion is performed is simply not copyrightable. Like the recipe for crème brulee, the recipe for making a lady disappear is a set of facts and processes. Both are excluded from copyright protection under copyright’s distinction between unprotectable ideas and protectable creative expression. A few creative magicians have tried to sue for copyright infringement, but so far without success. In 2003, a federal court rejected a suit brought by a magician who claimed that a television program infringed his act by revealing the secret behind his magic trick.26 Very recently Teller, of the famous magical duo Penn and Teller, broke his longtime silence to file a copyright suit in Nevada. Teller’s suit seeks damages against an Australian magician who posted a video on YouTube imitating a Penn and Teller trick, and who offered to sell the secret behind the trick for just over $3000.27 While Teller’s suit is pending as of this writing, it aptly illustrates the limit of copyright protection for magic. Teller is not actually claiming copyright in the way the trick works; he is asserting a copyright in the elaborate (and unusual) pantomime that accompanies the trick. Most magic tricks do not require an elaborate pantomime, and so the suit, even if ultimately successful, has little relevance to the community of magicians.28
Patent offers no help either. In theory a magic trick may, if it is novel and nonobvious, be patentable. But given that most magic tricks are tweaks of well-established routines, few are likely to meet that high threshold. Even for those that do, there is an overwhelming problem. Patent protection is granted only where the patentee adequately discloses the idea to the public—and that’s exactly what magicians don’t want.
There is another form of IP—trade secret—which provides some limited protection to carefully guarded tricks. Trade secret law was once useful to magicians. For example, magician Horace Goldin used a trade secret lawsuit in 1922 to block a film company from exposing his “sawing a lady in half” illusion.29 However, cases like Goldin’s have little continuing relevance, because modern trade secret law is much narrower than it was in the early 20th century.
This is true for two reasons. First, the law today is effective only in cases where the secret is revealed by “improper” means, such as theft or breach of a contract. Thus the law can still provide remedies to a magician for disclosure by a former assistant, but it does not reach the most common form of disclosure—reverse engineering by a rival magician or audience member. In other words, anyone witnessing a trick can legitimately recreate it, if they can deduce how it works. Second, and perhaps most important,
modern trade secret law requires that the holder of a secret make reasonable efforts to prevent its disclosure. But magicians operate in a culture of sharing among one another, and in many cases disclosure—even just to other magicians—is likely to eliminate protection. In sum, trade secret law is a weak tool for magicians.
As with comedians, when the law fails magicians, their norms step in. The exposure of tricks doesn’t occur often. But when it happens, the magic community retaliates. In the 1997–98 television season, Fox broadcast a four-part show titled Breaking the Magician’s Code: Magic’s Biggest Secrets Finally Revealed. In the show a character identified only as the “Masked Magician” performed a series of small tricks and large-scale illusions before revealing the secrets that made them possible. The turncoat magician was ultimately revealed to be a relatively obscure Las Vegas performer named Val Valentino.
The magic community’s response was swift and pitiless. Valentino was branded a traitor and shunned by magicians everywhere. “I’m sort of excommunicated now from the magic fraternity’s world,” Valentino admitted.30 Largely shut out of work in the United States, Valentino spent a lot of time performing abroad. In subsequent years, he helped to produce a reprise of Breaking the Magician’s Code, which aired in the United Kingdom and on US TV stations connected with Fox affiliate MyNetworkTV.
It’s been more than a decade since the first appearance of the Masked Magician, but the magic community’s dislike of Valentino persists. In the fall of 2010, well-known magician Criss Angel spotted Valentino in a Las Vegas casino and had him removed by security. Valentino told the press that Angel “looked at me and yelled, ‘Get that piece of [expletive] out of here.’ It was bizarre, so unprofessional. I was so disappointed in him.” When Valentino and his companion went to a different lounge in the casino, Angel found them and had them removed again.31
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