Three years ago, a comedian named Joe Rogan was onstage hosting a night of standup comedy when he spotted fellow comedian Carlos Mencia in the audience. Rogan started making fun of Mencia, referring to him as “Carlos Men-Steal-ya,” a reference to allegations that Mencia had cribbed liberally from the routines of fellow comedians Ari Shaffir, Bobby Lee and George Lopez. Mencia jumped onstage to defend himself, and soon an impromptu comedy trial began, with a boozy Saturday night comedy crowd adjudicating.

[CLIP]:

JOE ROGAN If someone steals a riff from a song, that’s in the news constantly.

MAN: Yeah.

JOE ROGAN: [SOUND CUT] steals [SOUND CUT] and make it on HBO?

[OVERTALK]

WOMAN: You made it better!

JOE ROGAN: They steal [CUT], they put it on television.

WOMAN: You made it better!

JOE ROGAN: What do you say –

[MEMBERS OF AUDIENCE SHOUTING]

CARLOS MENCIA: No, let me tell you what I think. I think that every time you open your mouth and you talk about me, I think that you’re secretly in love with me. That’s what I personally think.

[CROWD SHOUTS]

[END CLIP]

BROOKE GLADSTONE: The tape of the confrontation wound up online, where it was viewed more than five million times. That’s how law professors Chris Sprigman and Dotan Oliar saw it, and it got them thinking about intellectual property law and comedy. Jokes are hard to copyright. You can patent the delivery, but not the idea. Given that confusing distinction and the high cost of lawyers, comedians ply their trade without the benefit of legal protection. So how do they protect their jokes? Sprigman and Oliar did a study. Chris, Dotan, welcome to On the Media.

CHRIS SPRIGMAN: Thank you.

DOTAN OLIAR: I’m glad to be here.

BROOKE GLADSTONE: Without formal copyright protection, Dotan, how do standups stop people from stealing their bits?

DOTAN OLIAR: They're using a system of social norms that help them protect their rights in jokes and bits.

BROOKE GLADSTONE: What you’re saying is comedians are using moral-suasion to get each other not to steal from each other?

DOTAN OLIAR: Mm-hmm [AFFIRMATIVE], exactly right. The major sanction is reputation, also. In that business, reputation is everything. And if you have a bad reputation, agents are not gonna to 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 the 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've 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 text that anyone could read, right? When the norms emerged in the '50s and '60s, 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 and I walked through to the backyard, and there’s a pool, and as I'm diving in there’s a shark coming up on the water – with braces.

[LAUGHTER] So maybe you’re not so [CUT] special.

[LAUGHTER AND APPLAUSE] Martin Loser King.

[LAUGHTER] Yeah.

[END CLIP]

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 do you 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.

[LAUGHTER]

[END CLIP]

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.

[BROOKE LAUGHS]

CHRIS SPRIGMAN: In the post-vaudeville period, and there’s nothing wrong with that - those were the norms.

BROOKE GLADSTONE: So what industries other than comedy manage to innovate and build on each other’s art, without formal copyright protection?



CHRIS SPRIGMAN: Well, a good example of this is the fashion industry. Fashion designs are essentially free to copy, and yet every season you get a huge outpouring of new designs from thousands and thousands of firms and designers competing in an industry that’s probably worth about 200 billion dollars a year, just in the U.S.

BROOKE GLADSTONE: Another area is cuisine. It seems to me that there isn't a structure of social norms working on the inventors 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 are intellectual property law professors at the University of Virginia Law School. We'll end with this unstealable Bill Cosby classic:

[CLIP]:

BILL COSBY: And because of my father, between the age of 7 through 15, I thought my name was Jesus Christ.

[AUDIENCE LAUGHTER] He said, Jesus Christ!

[LAUGHTER/APPLAUSE] And my brother Russell thought his name was Dammit.

[LAUGHTER] Dammit, will you stop all that noise?

[LAUGHTER] And Jesus Christ, sit down!

[LAUGHTER] So one day I'm out playing in the rain. My father said, Dammit, will you get in here?

[LAUGHTER] I said, Dad, I'm Jesus Christ!

[AUDIENCE LAUGHTER]

[END CLIP]

[MUSIC UP AND UNDER]

BOB GARFIELD: That's it for this week's show. On the Media was produced by Jamie York, Mike Vuolo, Mark Phillips, Nazanin Rafsanjani and P.J. Vogt, with more help from Alex Goldman, Lynn Davis and Peter Henderson, and edited – by Brooke. We had technical direction from Jennifer Munson and more engineering help from Dylan Keefe.

BROOKE GLADSTONE: Katya Rogers is our senior producer and John Keefe our executive producer. 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 or email us at Onthemedia@wnyc.org. You can also visit our Facebook page or Twitter us. This is On the Media from WNYC. I'm Brooke Gladstone.

BOB GARFIELD: And I'm Bob Garfield. *** [FUNDING CREDITS] *** [END]