A long time ago, I worked on a piece about Chris Sprigman and Dotan Oliar’s great article on stand-up comics that is reprised in Chris Sprigman and Kal Raustiala’s The Knockoff Economy: How Imitation Sparks Innovation (review copy). My piece never went anywhere, but I’ll take my chance to share it now, modified to add some discussion of The Knockoff Economy, which I think is equally worth reading.
Summary of the book: Uncompensated and uncontrolled copying is all around us, and it’s not destroying creators’ willingness to create. The core case studies of the book are: (1) Fashion, where norms don’t stop copying, but instead, the authors argue, the inherent desire of fashion consumers for the new and trendy and distaste for the old means that innovation continues even with a lot of copying, though copying may well add a bit of speed to the cycle. Of course, fashion is often despised for this changeability, where we celebrate innovation in many other cases; both fashion’s lack of intellectual property protection and its general lesser status compared to other arts are gendered. (2) Recipes created by chefs, where norms do govern and restrain copying in many circumstances; chefs generally seek credit for innovation but share information readily. Cooking is also gendered in its lack of intellectual property protection and rise into higher status; cooking became art, not to mention high-dollar commerce, when men (“chefs”) started to do it. (3) Stand-up comedy, where there has been a noticeable decrease in acceptance of copying over time, which the authors connect to changes in the technological context—comedians can now reach millions and thus copying a joke is more noticeable and may really occupy the field in a way that vaudevillians stealing from each other didn’t—and relatedly to changes in the social meaning of comedy—a shift to identity-based rather than single-joke comedy that is likely to make many kinds of copying more difficult/less funny to the audiences. Louis C.K. can’t tell a Sarah Silverman joke without substantially revising it to make it his own. Comedians reportedly have strong anticopying norms backed not just by gossip but by the threat of violence (again, gendered), and the norms cover far more than copyright would, protecting the premise or idea of a joke that is, under copyright’s terms, free for anyone to appropriate.
Based on these three case studies, the authors suggest that “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.” (Interestingly, it would be relatively easy to secure copyright for jokes, but comedians just don’t use the copyright system to protect against copying, almost without exception.) The book also discusses magicians, who prize secrecy from the public over anticopying; financial products, where innovation is not necessarily a good thing; football moves; fonts; and databases. An epilogue discusses music; the authors suggest that music is transforming, not dying, with money shifting to touring and other forms of production that don’t rely on large-scale record sales.
(Aside: For football, the discussion of the mixed, often negative reaction to the West Coast Defense, the No-Huddle Offense, and the Spread Offense, all adopted by weaker teams to offset the advantages of the existing leaders, reminded me of Malcolm Gladwell on underdogs in basketball. Whereas the football innovations were all eventually adopted by other teams, Gladwell’s story makes the point that innovations are regularly resisted by people doing well under the current system; in fact they can be crushed if you convince enough people that doing the thing “right” requires avoiding innovation. A great extension of Sprigman & Raustiala’s book would explore communities in which innovation fails and their attitudes towards property; the language used to attack innovations is often moral and non-utilitarian, suggesting a kind of moral right in preserving the existing system/game/etc.)
In addition, the example of a coding challenge where submissions to a contest are all public and can be borrowed as the contest continues helps illustrate that what the authors call “tweakers” are often directly responsible for refining a leap by a pioneer and making it much more productive/valuable, and this both incentivizes tweakers and leads to big debates over credit allocation. Copyright and patent don’t favor tweaking, though, given the control they give patentees and copyright owners over follow-on innovation/derivative works. This leads the authors to an unfortunate aside about how it’s maybe a good thing that we all can’t rewrite Star Trek episodes to “explore the romantic possibilities between Commander William Riker and Counselor Deanna Troi” (i.e., the creative variation I like in, say, football is awesome, but the creative variation you like is crap). This leads in turn to an equally unfortunate footnote recognizing that the statement in text does not describe the state of the world: plenty of people do write their own Star Trek stories. But the authors deem “almost all” fan fiction to be infringing, as if fair use were irrelevant.
One overarching lesson of the book’s case studies is that regimes that don’t rely on intellectual property to incentivize creativity and innovation are everywhere; copyright and patent are more exceptional than we often assume. Things that are relevant to the kinds of copying and innovation that occur include: fads, norms, the ability to sell a different underlying product or experience/performance along with a creative work, first-mover advantages, and branding success (we pay more for Coke than for generic grocery store cola).
Now I’m going to talk mostly about comedians: Studies like Sprigman and Oliar’s, along with the other case studies in the book, illuminate how poorly copyright law’s standard incentive theory describes a large number of creative endeavors. Why is that? One key insight is that, in Madhavi Sunder’s words, identity politics interact with intellectual property concepts: intellectual creations regularly have as much to do with the first kind of “IP” as they do with the second. Put differently, authors understand their works to express and form an identity that is both unique to themselves and part of a larger culture. This cultural context both incentivizes creativity even in the absence of conventional IP ownership and shapes the content of what gets created.
Relatedly, intellectual property, like property generally, allows some claims to power and authority and deauthorizes others. Oliar and Sprigman showed that modern comics think of their jokes as being intrinsically tied to their own identities, often invoking specifics of race, gender, sexuality, and class. Regardless of how great a role law or its absence played in this shift, Oliar and Sprigman argue that comics have achieved a sort of self-help propertization of their jokes by moving to identity-specific routines that are not as easy to appropriate. I think the cultural drivers of these changes were probably more important than a desire to create comedy that could be propertized; even if we include norms as part of IP rules, it’s not clear that anticopying norms drove practices rather than vice versa (and both the book and the article disavow strong causal claims, the book more insistently).
But just who are these jokers who now make who they are central to their routines? Oliar and Sprigman reported that their interviewees had “some diversity across sex, race, age, geographic location, income level, and sexual preference.” One important question is whether the “prison-gang justice” reported by some respondents, also called “tribal,” is affected by these differences. Would a comic help harass a joke-thieving comic from his own larger group if the victim was from a different group? (I use “his” quite deliberately; the reported examples of comedians threatening or using violence to punish joke-stealing all involved men.) If tribal loyalties are affected by aspects of identity that extend beyond the role of comic, as seems likely, then not everyone gets the same benefits from the norms. And, of course, it is quite common for norms to be differentially enforced in favor of more powerful groups, just as it is common for laws to be differentially enforced. The hugely popular Robin Williams, allegedly a notorious joke thief, seems to have done fine—and I’ll suggest some extra reasons in a bit. The account of comics’ self-help reminded me of Acheson’s classic study of the lobster gangs of Maine, which also created a kind of private property through informal lawmaking and also involved groups of men willing to inflict violence for norm violation.
For an interesting contrast, the least cohesive group—fashion designers and producers of garments—was the one with the fewest anticopying norms, and probably not incidentally was global in its diversity. Not everyone in the fashion business speaks to each other; they don’t have to care what many other market participants think. Meanwhile, The Knockoff Economy points out that chefs are in the middle—American cuisine is dispersed and varied, and American chefs are more ambivalent about anticopying norms than French chefs.
Another feature of tribalism is that comedians’ norms are directed at other comics. It doesn’t seem that the people surveyed would have much interest in barring non-comedians from retelling one of their jokes to friends who missed a particular performance. Likewise, chefs want recognition from other chefs—of course they want the public acclaim that comes from being a celebrity too, but that acclaim won’t be affected by private/personal copying of their recipes and indeed may be enhanced, whereas unattributed copying by another chef may cause outrage. One way to look at this would be to consider jokes and recipes quasi-property, like the news in INS v. AP: property only as against competitors. Proposed protections for fashion design work similarly: they are aimed only at the competition. Another, perhaps more productive, perspective is to think of property claims as a kind of language, as Carol Rose would have it, speaking to a particular audience—not primarily the one buying the drinks, though convincing that audience to help police “theft” is also quite useful.
Even where norms govern instead of law, there is always a question of whose claims count and whose claims, though an alien (Mork?) might think them similar, are not even recognized as such. Oliar and Sprigman wrote that “[c]omedians … believe that it is never permissible for a comedian to deliver material that is not his.” But their own research revealed that the opposite was true. (I’m not questioning their research nor the sincerity of their sources: the point is that their sources believed something that was self-evidently untrue. This is always a signal that something very interesting—usually something about status—is going on.) In fact, comedians often provide material for other comedians.
Oliar and Sprigman identified two common situations of this type. First, comedians may help others create jokes. There is no joint authorship norm: “The comedian who offered the punchline would know that she has in effect volunteered a punchline.” People who provide parts of jokes to comics have given a gift. And as Carol Rose and Lewis Hyde among others have noted, a gift can also be a burden, because it creates an obligation for the recipient. The anxiety generated by a gift can be managed by reciprocal norms: the contributor will perhaps someday receive assistance in creating his own jokes, and also be able to claim complete ownership of those jokes. The contributor’s creativity and labor when she helps out, however, are not her own. They disappear into the primary comedian’s joke.
Second, comedians may use jokes created by other people, who submit them and get paid if their jokes are used. Like the singer/songwriter model in music, the stand-up character can be as constructed as any boy band. Oliar and Sprigman maintain, however, that the practice of using writers is much less common than it used to be for comedians, and relatedly that comedians today invest relatively less in performative aspects (costume, movement, props) and relatively more in individualized schtick. One reason comedians invest more in writing their own jokes is, they suggest, that it is naturally harder to write for another person with a unique persona than it is to write generic jokes. This extra difficulty can be expected to raise the relative price of buying modern, identity-specific jokes.
Yet buying jokes is apparently a perfectly legitimate means of becoming their exclusive owner even among stand-up comedians. Indeed, Oliar and Sprigman’s informants accept that sale of a joke divests attribution rights, which are often considered far more important than economic rights to individual creators. Writers can’t claim the jokes they wrote even in seeking to prove their comic credentials.
Now revisit “[c]omedians … believe that it is never permissible for a comedian to deliver material that is not his.” “His” here means something that obscures important operations of power. Ownership claims depend upon the absence of other ownership claims—contrary to the “official” story about writing one’s own material in splendid isolation, it turns out that it is all right for a comedian to tell other comedians’ jokes, as long as the relationship is structured in the appropriate way so that the jokes, or joke components, become the property of the person who didn’t think them up. Some creative work counts in producing property claims; other creative work doesn’t. It’s about power.
There’s more: all this depended on a particular definition of “comedian.” There’s actually a gap between what The Knockoff Economy calls “rival creators” and the group known as “consumers.” Expand the frame, and a property norm may only apply to a subset of broadly similar activities—a truly local ownership norm. This matters, among other things, because copying may work very differently in the other subsets, most obviously in advertising where becoming a political slogan (“Where’s the Beef?”) can be confirmation of fame and value. The market for comedy is expanding, and permeable. If we look at non-stand-up aspects of the market for comedy, we see a different picture.
Television sitcoms, for example, reach millions of viewers every week. Sitcoms have extensive writing staffs devoted to producing jokes for hire. While many successful sitcoms feature writer-performers (30 Rock, Seinfeld, and so on), the stars do not write all their own material. Moreover, their material often is customized to their public personae. This common practice made me wonder about Oliar and Sprigman’s proposition that writing for another specific person is more difficult than writing generic jokes, and thus relatively more expensive. Scripted television—which includes a fair amount of “reality” television as well—is premised on teams of writers writing for characters not themselves. Even accepting that this is harder to do than to write for oneself, the supply of aspiring writers outstrips demand so greatly that it seems unlikely that writers can demand much of a premium for writing in a different voice.
The practice of writing for other people is not unique to comedy. Historically, writing in a different voice is fairly common, whether for television or in other media. (Think of the Nashville songwriter versus the singer/songwriter, the latter of whose strong showing in recent decades is now perhaps receding compared to work from top-liners/producers.) Indeed, Oliar and Sprigman’s assumption that writing for a specific character is especially difficult may itself be an effect of the ideology of romantic authorship in which genius is individual, unique and nontransferable. Good “generic” jokes are not that easy to come up with either. Not for nothing is the rule “dying is easy, comedy is hard.”
Relatedly, expanding and diversifying comedy markets may be providing audiences with jokes they can repeat, jokes that used to be provided by stand-up comedians. Viral marketing, advertising (Wassup?), sitcoms (not that there’s anything wrong with that), and other sources of spreadable comedy seem to be flourishing, subject to their own incentive schemes and norms. Audiences still want to hear jokes they can repeat. They just don’t necessarily want to hear them from stand-up comedians. In this context, I was unconvinced by Oliar and Sprigman’s argument that generic jokes are plainly less valuable than comic-specific jokes:
if crowds would prefer hearing generic jokes, then we would expect them to flock to the sorts of low-level venues (cruise ships, casinos, and corporate events) that offer that kind of material to this day. Their willingness to pay for generic jokes would arguably be higher than for original material. These, of course, are counter-factuals ….
Of courses are dangerous (mine too!), because we might not be able to prove them. Along with sitcoms and advertising, cruise ships, casinos, corporate events, and other similar venues seem relatively popular. And why seek out more generic jokes from stand-up comedians when so many are being supplied by other parts of popular culture? Instead of concluding that generic jokes lack value, I would conclude that stand-up now supplies a different and perhaps smaller subset of comedy than it used to. This very specialization may be one of the factors that feeds into anti-copying norms: distinct norms can help a group maintain its sense of coherence and superiority to other, similar groups. (One might compare this situation to Peter Decherney’s discussion in Hollywood’s Copyright Wars: From Edison to the Internet about how YouTube represented a crisis in norms of fair use because people from different video subcultures suddenly found themselves highly visible to other subcultures and to copyright owners.)
The Knockoff Economy, like the projects on which it is based, provides a rich and intriguing look at how members of specific communities of practice think about ownership and copying. I would urge people to read it, and to think about how norms about copying fit into larger relations, including gender, race, and class divisions; the balance of power between people who pay and people who get paid; and ideologies of craft versus ideologies of mass production.