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.
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