International Law

In part, it was a viral video of two well-known comedians hurling obscenities at each other that prompted a pair of University of Virginia law professors to take a serious look at how professional comics protect themselves from joke theft.

In February 2007, stand-up comedians Joe Rogan and Carlos Mencia squared off on stage at a prominent Los Angeles comedy club after Rogan accused Mencia ? whom he dubbed "Carlos Menstealia" ? of pilfering material from other comedians. A video of the altercation garnered more than 2 million views online and countless mentions on blogs and Web sites.

"The two of them had an almost physical fight on stage where they were yelling at each other about the accusation of joke stealing, and Mencia was denying it," said Chris Sprigman, who with faculty colleague Dotan Oliar authored an upcoming Virginia Law Review article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy."

The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work ? copyright law plays little role in comedy ? why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?

After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes ? and that the system functions as a stand-in for copyright law.

"Most of our research over the last year has been trying to piece together all the attributes of this system that comedians have started up and run for themselves," Sprigman said.

In their paper, published in the December edition of the Virginia Law Review, Oliar and Sprigman identify several of the informal rules that govern stand-up comedy.

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For Sprigman and Oliar, the study of stand-up comedy has ramifications for the larger world of intellectual property law, or the body of law that protects creative works through devices such as patents, trademarks and copyrights.

The underpinning of such law is the notion that without it, theft would be so rampant that there would be no incentive to create or innovate, Oliar said.

"For us, the most salient observation is that the law has not done the job of protecting jokes, but the joke market has not failed. The market is substituting this set of informal rules for the formal ones, and as far as we can see it's doing a pretty good job," Sprigman said.

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Both men stressed that joke theft is not common in the world of stand-up comedy, and that most comedians pride themselves on creating original material.

One potential downside to the social norm system as opposed to formal legal protection is that social norms might not be effective at punishing comedians who get to the top of the field, they said.

"If a successful comedian doesn't care too much about the community's feelings toward him, then he's hard to discipline," Sprigman said. "But keep in mind that the formal law doesn't always work either. There are all kinds of copyright rules that apply to the music industry, but there are millions of people illegally downloading songs.

"There's always a slippage between the law on the books, or the rules in the norms system, and the ability of these rules to be enforced."