1. THE LAW AND ECONOMICS OF STAND-UP COMEDY
Jokes look like public goods. A joke is non-rivalrous and nonexcludable.
Once a comic tells a joke in public, without some
mechanism to limit joke-copying, the comic has little ability to prevent
free appropriation. As a result, returns on innovation are too low to
sustain an incentive to produce fresh humor. Underproduction and
overconsumption of jokes, a sort of tragicomic market failure, is the
probable result. 9
Since there appears to be no shortage of commercial, public humor,
and since comics appear not to be resorting to formal intellectual
property law as a classic property-based solution to the market problem,
Oliar and Sprigman hypothesize that an informal intellectual property
regime is doing the work instead. They describe a robust system of
social norms that looks and sounds altogether like a formal copyright
regime without the codification: exclusive rights, trespass norms,
exceptions and exclusions, enforcement mechanisms, and so on. The
shift to proprietary norms apparently began with the emergence of
narrative- and perspective-driven comedy in the early 1960s among a
new generation of stand-up comics suffused with the political
independence and social unrest that came to characterize that decade.
Oliar and Sprigman align the new comic norms and content with shifts
in monitoring and enforcement costs during the 1960s. As the benefits of
a propertized scheme rose it seems logical to suppose-as Oliar and
Sprigman do' -that the benefit/cost balance associated with
enforcement of property-like interests shifted in favor of propertization.
This is consistent with Demsetz. Oliar and Sprigman are appropriately
cautious in suggesting a causal connection, but their argument is
nonetheless straightforward.
8 See