The writers of Saturday Night Live were accused of joke plagiarism last month by sketch comedy writer Tim Heidecker. Whether or not Heidecker’s right, he can’t sue: like fashion, comedy is a world where copyright law barely applies. Comedians don't copyright their jokes; instead, they rely on an informal system of intellectual property enforcement. Chris Sprigman and Dotan Oliar, two law professors, decided to study how that system works.
[CLIP FOR TINY HATS/CHIMES]:
MAN: Hey Jeff, let's go, we'll be late for the game.
JEFF: I can't, I have to put all of my dolls away.
JEFF: Cindy's coming over for the first time, and none of these dolls have hats on.
MAN: Well, why don't you go down to Tiny Hats?
JEFF: They're not open on Sundays.
MAN: They are now.
ANNOUNCER: Tiny Hats is now open Saturdays and Sundays, so you don't have to worry about those last- minute Tiny Hat emergencies. Hats for small men and babies, hats to complement cakes and pies, wear one under your normal size hat. It's your secret.
BROOKE GLADSTONE: That clip is from a 2007 episode of a comedy show called "Tim and Eric, Awesome Show, Great Job!" The sketch is a fake ad for a store that only sells tiny, tiny hats. A few weeks ago Saturday Night Live aired a similar sketch that showed young fashionistas one-upping each other with ever tinier, tiny hats.
ACTRESS PLAYING LADY AT LUNCH: Trish, look at Sylvia. I guess you're not the only one with an adorable little hat anymore. [LAUGHS]
AMY POEHLER AS TRISH: Ooh, how nice, Sylvia.
KRISTEN WIIG AS SYLVIA: Thank you, Trish.
TRISH: I tip my hat to you.
LADY AT LUNCH: A smaller hat.
ANOTHER LADY AT LUNCH: It’s a smaller hat.
LADY AT LUNCH: Oh, Trish!
LADY AT LUNCH: Oh, my goodness!
BILL HADER AS DESIGNER: Advantage, Trish!
BROOKE GLADSTONE: Tim Heidecker, who co-wrote the first sketch, observed via Twitter, the similarities between his haberdashery humor and SNL's. Bloggers and comedy geeks took sides, the press picked up the story, and Heidecker, half-jokingly, half not, asked for a public apology from SNL. You might wonder why didn’t Heidecker just copyright his joke. The answer is that comedians can’t. Legally you can own the delivery of a joke, but you can’t patent its premise. Heidecker owns his Tiny Hat sketch, but the general idea that tiny hats are funny, that belongs to all of us. Earlier this year we spoke to law professors Chris Sprigman and Dotan Oliar who did a study of how in the absence of legal protection comedians protect their jokes. They say there's a kind of informal policing that goes on.
DOTAN OLIAR: The major sanction is reputation, also. In that business reputation is everything. And if you have a bad reputation, agents are not gonna want to represent you. Club owners might not want to have you in their club. People are not going to be willing to work with you on a comedy bill. Like eight or ten comedians would work every night, and if you can't find other people who are willing to share the stage with you, you’re pretty much gonna be out of work. And then the last enforcement mechanism is physical violence, [BROOKE LAUGHS] or threats of physical violence.
BROOKE GLADSTONE: Can you give me an example where physical violence was used on a repeat offender?
CHRIS SPRIGMAN: George Lopez, who’s a pretty famous comedian, bragged a bit about how he'd jacked Carlos Mencia up against a wall and roughed him up, after Mencia, at least in Lopez’s view, took a whole bunch of Lopez’s material and used it in one of Mencia’s specials, I think for HBO. Generally these disputes are settled. They don't come to blows like this. But if joke stealing is persistent and the joke stealer is recalcitrant, then you might eventually see something like this happen.
BROOKE GLADSTONE: So what’s going to stop “Carlos Men-Steal-a” in the end?
CHRIS SPRIGMAN: [LAUGHS] Well, the norm system, I think, has a weakness, which is it’s difficult to enforce against someone who’s truly both successful and a bit of a sociopath, right? [BROOKE LAUGHS] So I'm not saying that that’s what Mencia is, but if he is, if he doesn't really care about what other people think - of him, then he’s hard to discipline. But, of course, you know, the norm system has to be compared with the formal copyright law, which is difficult to enforce too because it’s so expensive to bring a lawsuit in federal court, that often it’s just not worth it, right? So both systems have their flaws. The norm system flaws are not, obviously, at least to us, worse than the legal system’s flaws.
BROOKE GLADSTONE: Well, let's talk about the legal system’s flaws. One of the arguments people make for formal and thorough copyright protection is that it encourages people to innovate because they can own their intellectual work. So does the lack of formal copyright protection stop people from innovating?
DOTAN OLIAR: The reason why we started this research is with that question. How come so many comedians are creating, without any effective legal protection? The interesting thing we saw here, that a) the norm system substitutes and supplements the law and can act as an effective incentive mechanism, but also another interesting thing is that we noticed some connection between the form of protection and then the character of the creative art. Those social norms that we've just described to you, they did not always exist. The norm in the business was that you could steal, and before the emergence of norms, jokes were like texts that anyone could read, right? When the norms emerged in the fifties and sixties, with comedians like Lenny Bruce, you cannot just take a joke from another person and tell it as yours, right? Comedians have character, and some narratives are tailored to their persona.
BROOKE GLADSTONE: For instance, Sarah Silverman has a certain kind of outrageous joke.
CHRIS SPRIGMAN: Right, so Sarah Silverman’s a great example of what we're talking about. [CLIP]:
SARAH SILVERMAN: Guess what, Martin Luther King?
[LAUGHTER] I had a [CUT] dream, too.
[LAUGHTER] I had a dream that I was in my living room –
[AUDIENCE LAUGHTER] - and I walked through to the back yard, and there’s a pool. And as I'm diving in, there’s a shark coming up from the water, with braces.
[LAUGHTER] So maybe you’re not so [CUT] special.
[LAUGHTER/APPLAUSE] Martin Loser King.
CHRIS SPRIGMAN: It makes sense only from within the persona that Sarah Silverman has constructed, this intelligent, but completely obtuse - monster, right, that she is onstage?
BROOKE GLADSTONE: Mm-hmm.
CHRIS SPRIGMAN: For someone to take that joke and have it make sense, they have to, in a sense, do the work to reconstruct enough of her persona that it makes sense. And, to boot, if somebody takes that joke, it’s much more readily identifiable as Sarah Silverman’s, right? It comes in essentially marked with her persona –
BROOKE GLADSTONE: Mm-hmm [AFFIRMATIVE]
CHRIS SPRIGMAN: - which helps the norm system enforce her property rights.
BROOKE GLADSTONE: And if you contrast that with, say, a Henny Youngman joke, any number of Borscht Belt comedians could say it -
CHRIS SPRIGMAN: Yeah, exactly, so here’s a Henny Youngman joke. [CLIP]:
HENNY YOUNGMAN: A lot of people say, how doyou stay married for 41 years. Here’s the secret. My wife and I go to a romantic restaurant twice a week, a little candlelight, a little wine. She goes Tuesdays, I go Fridays.
CHRIS SPRIGMAN: You could tell it no matter who you were. It doesn't have much to do with Henny Youngman’s persona.
DOTAN OLIAR: There are accounts of Milton Berle going uptown in Manhattan to comedy clubs, sitting in the front row with a pen and paper. [LAUGHS] He would also joke publicly about his practice. When his turn would come up in a comedy club, he would start his bit by saying, the last guy was so funny, I laughed so hard I almost dropped my pad and pencil.
CHRIS SPRIGMAN: In the post-vaudeville period, and there’s nothing wrong with that - those were the norms.
BROOKE GLADSTONE: It seems to me that there isn't a structure of social norms working on the inventions of recipes. They just go ahead, as comedians did in the vaudeville days. DOTAN OLIAR: Again, the leading norm is that it’s not okay to exactly copy a fellow top French chef recipe and serve it in your restaurant. However, those who play by the rules get cooperation and sharing of ideas and cooking techniques, and those who do not play by the rules are being kept out of the inner circle. BROOKE GLADSTONE: So what lesson are we to draw from the evolution of social norms for standup comics, in place of formal copyright protection, that it’s always better not to have copyright protection? DOTAN OLIAR: We have charted three different possibilities, right, the old Borscht Belt model where you have comedians telling kind of jokey jokes onstage with the rim shot at the end, or we have the current standup world where you have people standing onstage with personal point-of-view-driven narratives. Or we can have a potential future where there are strong legal protections, corporations sweep in because of economies of scale and enforcement and clearing rights, and then humor is being cleansed, turning away from the cutting edge and becoming more family-friendly. And whether you want or you do not want legal protection depends on what world do you prefer to live in. BROOKE GLADSTONE: What world do you guys prefer to live in? CHRIS SPRIGMAN: Well, it’s a matter of taste. But the world that we live in now is pretty attractive to me. Comedians have enough of an incentive to create that we get a really robust market. It’s very free. It’s very diverse. There are a lot of different voices, and it’s funny.
BROOKE GLADSTONE: Thank you so much.
CHRIS SPRIGMAN: Oh, it’s our pleasure.
DOTAN OLIAR: Thank you very much.
BROOKE GLADSTONE: Chris Sprigman and Dotan Oliar, intellectual property law professors at the University of Virginia Law School.
[THEME MUSIC/UP AND UNDER] BOB GARFIELD: That's it for this week's show. On the Media was produced by Jamie York, Mike Vuolo, Nazanin Rafsanjani. Alex Goldman and P.J. Vogt, with more help from Nerida Brownlee and Bonnie Watt, and edited – by Brooke. Our technical director is Jennifer Munson. Our engineer this week was Robert Granniss.
BROOKE GLADSTONE: Katya Rogers is our senior producer. Ellen Horne is WNYC’s senior director of National Programs, and our capo di tutti capi. Bassist composer Ben Allison wrote our theme. You can listen to the program and find transcripts at Onthemedia.org. You can also post comments there. You can find us on Facebook or follow us on Twitter, and you can email us at Onthemedia@wnyc.org. On the Media is produced by WNYC and distributed by NPR. I'm Brooke Gladstone. And John Solomon, we’re thinking of you. We love you.
BOB GARFIELD: This is for you, John. I'm Bob Garfield.