How Social Mores Often Work Better Than Copyright Law In 'Protecting' Works

from the you-don't-need-a-law dept

Two years ago, we wrote about the big hubbub caused by comedian Joe Rogan getting on stage at a comedy club and accusing another comedian, Carlos Mencia, of "stealing jokes." This resulted in quite an involved discussion, and then a followup discussion on the whole concept of "stealing jokes," where we discussed a few key points. First, jokes have always been passed around, shared, retold and built on for years. Also, it's not the joke, but the delivery that's important. If you want to see a movie-length example of this, just go watch The Aristocrats. But, finally, and most importantly, it highlighted how social mores can come into play in these discussions. If you really are doing something that the community finds unfair, they'll call you on it, and it can harm your reputation. Two years ago, I wrote:

There's a price to pay for it in terms of reputation. The backlash against Mencia is exactly that price. His reputation is taking a big hit, and he seems to keep digging himself a deeper hole by refusing to admit that he repurposed others' jokes (and, in fact, is apparently still doing so). So, perhaps the real issue here is that this is an issue that can be solved by social norms, rather than laws like copyright. If you're going to make use of someone else's work, it's going to come back and bite you if you're not willing to admit it. There is still value in being a good joke teller, even if you're using other people's work -- but if you keep pretending that you were also the creator of that work, it's going to come back and hurt you in terms of your reputation.

This is a similar point that I've made when people ask how I would feel if websites copied Techdirt without giving us any credit. As I say, they're free to do so, but they should realize that if someone notices that they're copying without credit, it could seriously harm their reputation -- and reputation is a scarce good that is hard to build up if you've lost it. In other words, one of the reasons why I proudly put all this content into the public domain is that I recognize that most people who use it will know that it's in their own best interest to credit us, and help give us more attention, because it's not worth the credibility risk.

Over at the Freakonomics blog, economists Kal Raustiala and Chris Sprigman have "stolen" this idea (relax, relax, that was just a little joke -- remember, this post is about jokes) and have a great post about how social rules within a community often work better than any gov't granted monopoly. They even use the same Rogan/Mencia example:

At first glance, this may seem like a nasty but ultimately meaningless showbiz feud. But it's more than that. In fact, Rogan's decision to confront Mencia is an example of what stand-up comedians do all the time. Comedians have rules of their own about joke-stealing. And they impose their own punishments on thieves....

Why do comedians do this? In part, because they live in a world where intellectual property law -- in particular, copyright -- does not help them much when a rival comedian steals a joke. In theory, copyright law applies to jokes. But in the real world, lawsuits are simply too expensive and uncertain to work as an effective response to joke stealing.

The social rules can be quite involved and effective, with those disobeying the rules risking their own careers:

Importantly, comedians' norms are not just "suggestions." They also include informal but powerful punishments. These start with simple badmouthing and ostracism. If that doesn't work, punishments may escalate to a refusal to work with the offending comedian -- which can keep the accused joke-thief off of comedy club rosters. Occasionally, punishments turn violent. None of these sanctions depend on the law -- indeed, when comedians resort to threatening or beating up joke thieves, that's against the law. That said, although both the rules and the punishments are informal, they are effective. Within the community of comedians, it hurts to be accused of stealing a joke. In some cases, repeat accusations may destroy a showbiz career.

Of course, none of this is new. Last year's Nobel Prize winner in economics, Elinor Ostrom, won for her work showing how specific communities can often better self-regulate so-called "public goods," rather than needing to involve gov't mandated privileges or property rights.

While we're talking about jokes here, this is a serious issue when it comes to economics, policy and the law. It suggests, yet again, that the rush to keep putting up artificial monopoly rights may not be needed in many cases.

Filed Under: carlos mencia, comedy, copyright, joe rogan