The Knockoff Economy

by Kal Raustiala

He gives him a football and he shows him how to pass it. He shows him every day how to pass that football, how to three step, five step, seven step drop. He shows him how to throw the bomb, how to throw the out, how to throw the hook, how to throw the corner, he shows this little kid everything he needs to know about how to be a great quarterback, he even moves from one city to the other, so that kid can be in a better high school. Then that kid goes to college and that man is still, every single game, that dad is right there and he’s in college getting better, he wins the Heisman trophy, he ends up in the NFL, five years later he ends up in the Super Bowl, they win the Super Bowl, he gets the MVP of the Super Bowl, and when the cameras come up to him and say “you got anything to say to the camera?” “I love you mom!” Arrrgh… the bitch never played catch with you!13

  Compare this to a bit from Bill Cosby’s 1983 hit album “Himself”:

  You grab the boy when he’s like this, see. And you say, “come here boy”—two years old—you say, “get down, Dad’ll show you how to do it.” “Now you come at me, run through me,” (boom!). “There, see, get back up, get back up—see you didn’t do it right now come at me,” (boom!). See, now we teach them—see now you say, “go, attack that tree, bite it, (argh!) come on back, bite it again,” (argh! argh!). You teach them all that: “tackle me!” (bam!). And then soon he’s bigger and he’s stronger and he can hit you and you don’t want him to hit you anymore, and you say, “alright son.” Turn him loose on high school and he’s running up and down the field in high school and touchdowns, he’s a hundred touchdowns per game and you say, “yeah, that’s my son!” And he goes to the big college, playing for a big school, three million students and eight hundred thousand people in the stands—national TV—and he catches the ball and he doesn’t even bother to get out of the way, he just runs over everybody for a [touchdown] and he turns around and the camera’s on him and you’re looking and he says, “hi mom!” Ah… you don’t mind that. You know who taught him.14

  Mencia has denied copying Cosby’s football routine—indeed, he’s denied ever hearing Cosby’s routine prior to performing his. But that’s hard to believe. Cosby is an icon in the comedic community, and Himself has sold a huge number of copies and is still on sale 25 years after its release. Given these facts, it’s unlikely that Mencia never heard it. And given the striking similarity of the two routines, it’s a fair inference that Mencia copied. Cosby, who has denounced copyists but who has also admitted to having once copied comedian George Carlin,15 has taken no action against Mencia.

  Comedian George Lopez has not been as generous. In 2005, Lopez accused Mencia of incorporating 13 minutes of his material into one of Mencia’s HBO specials. And Lopez retaliated: he grabbed Mencia at the Laugh Factory comedy club, slammed him against a wall, and punched him.16

  Yet if a hard punch is a legitimate response among comics to joke stealing, then perhaps Lopez should also beware. Speaking at the 2008 Grammys, Lopez noted how pleased he was to see a woman (Hillary Clinton) and an African American (Barack Obama) competing for the Democratic presidential nomination. He worried, however, that the first female or black president might be assassinated. The best thing to keep them safe, he suggested, would be to choose a Mexican vice president. “Anything bad happens,” Lopez promised, “Vice President Flaco will live in the White House.”

  Funny, but eight years earlier, in his 2000 HBO special “Killing Them Softly,” Dave Chappelle declared that he would not be afraid if he were elected the first black president, even though he knew that some people would want to kill him. The reason? Chappelle would choose a Mexican vice president “for insurance.” Chappelle’s punch line: “So you might as well leave me and Vice President Santiago to our own devices.”17

  Did Mencia copy Cosby and Lopez? Did Lopez copy Chappelle? We don’t know for sure: in these, as in many other cases, it is possible that one comedian has imitated another, or that each came up with the joke independently. There are scores of examples that suggest that a joke has been copied—but the evidence is rarely definitive.

  The “Mexican Vice President” joke helps to explain why there are fewer lawsuits over imitation than one might otherwise expect. It can be hard to figure out who is an originator. But it’s still a puzzle why there are none, since not all—or even most—comedy is based on topical issues like elections. The utter absence of suits is not just a result of copyright’s poor fit. It is also a consequence of comedians’ social norms system. Let’s get more specific about what these norms are.

  Thou Shalt Not Covet Thy Neighbor’s Jokes, Premises, or Bits

  The most important norm is a basic one: a widely shared taboo against copying. This norm is so fundamental that a popular guide for new stand-ups, The Comedy Bible, puts the following as the first of its Ten Commandments to the novice: “Thou shalt not covet thy neighbor’s jokes, premises, or bits.” Other “how to” guides convey the same message.18

  One obvious question is what exactly this norm prohibits. Does it apply only to exact copying, or all the way to imitating another comic’s funny idea ? As we’ve seen, standard rules of copyright prohibit the use of expression that is “substantially similar” to a protected work, but do not protect the underlying idea. The social norms of comedy do not draw the same distinction. They protect both expression and ideas.

  One comedian illustrated this with an example of a joke about a person having sex in a church. The idea is so general, the comic said, that it should remain open to rival comics. Add, however, even a minor bit of specificity (the comedian posited a joke about a person having sex in a church who is caught by a priest) and both the particular joke embodying that idea, and the idea itself, are off limits to anyone else. Along these same lines, many comedians say that borrowing even general premises—anything that is not “stock” or “commonplace”—is objectionable.

  In other words, comedians’ norms system extends to the type of behavior usually thought of as plagiarism. From a legal perspective, copyright infringement and plagiarism are quite different. Copyright infringement involves the unauthorized copying of protected expression. Plagiarism is a broader concept: it means either the unattributed copying of another’s expression (which may also violate copyright law), or unattributed copying of another’s ideas (which would not violate copyright or, in the vast majority of cases, patent). Of course, copying ideas without proper citation is regarded as a serious offense by certain institutions, such as universities and publishing companies, and certain social groups, such as writers or academics. But these rules against plagiarism are not legal rules—no one can be sued for plagiarizing an idea. Rather, the punishments for this sort of plagiarism are either found in institutional rules like university codes of academic conduct, or they are part of the informal norms of some particular professional group (such as journalists).

  Many comedians use the word “plagiarism” to refer to the copying of funny ideas. And, interestingly, they do this whether the idea is attributed to its creator or not. That is a significant step further than the usual approach to plagiarism, which applies only where the original author is not credited. Think of academic writing, where it is fine to copy another idea as long as the author is credited in the text or even in a footnote. (Indeed, academics like us love when someone copies our ideas—as long as we get the citation).

  Why would comedians take this extra step and bar even the copying of attributed ideas? Maybe it is because audiences want new, fresh material every time they see a favorite comic, and so a comic who tells another comic’s joke, even if credited, hurts the originator by over-exposing the material. And maybe (and a related point) it is because comics are committed, as a community, to originality as the defining characteristic of a comic. A person who makes a living telling other people’s jokes is simply not a stand-up comedian—at least according to other stand-ups.

  But as we explained earlier in this chapter, it hasn’t always been this way. In an earlier era, funnymen regularly reworked, recycled, and s
imply stole jokes from their rivals. No one thought it was particularly unusual or wrong to do so, and many—no surprise—joked about it. We are not sure what led to the change in views over the merits of copying. Certainly technological changes have made it easier for audiences to notice copying. In the Borscht Belt days, audiences were all live. Today, there are television specials, comedy albums, and of course YouTube. Whatever the precise reason, however, comedians today are far more vigilant against copying underlying ideas and expressions.

  Own the Premise, Own the Joke

  Jokes are often produced collaboratively. Comics spend a lot of time together in clubs and on the road, and often they work out new material while hanging out with other comics. It is not uncommon for a comedian with a great premise to probe another for punch lines, or to try out new jokes on a friend and replace a punch line with one suggested by a peer. Under the rules of copyright law, the comedian originating the premise and the comedian originating the punch line would be joint authors and co-owners of the resulting joke. Comedians, however, adhere to a different rule: the comedian who came up with the premise owns the joke. The comedian who offered the punch line would know that she has in effect donated her services.

  Why do comedians reject the legal rules governing joint authorship? Because they are incompatible with effective enforcement of the norm against copying. If two comedians were true joint authors, both would own equal rights in the joke. But if both told the same joke, fellow comedians and audience members would think one copied the other.

  Joint ownership of a joke, in short, would frustrate enforcement of the cardinal anti-copying norm. Today, all that one needs to enforce the norm is to witness two comedians telling a similar joke. However, under a norms system that recognized joint authorship, detection of stealing would be more difficult, because two comedians telling the same joke can indicate either theft or co-ownership. With the signals muddied in this way, the norm system might well break down.

  The same basic concern drives a separate norm governing how comedians buy and sell jokes. Copyright law says that to license or purchase a work, the buyer must have a signed, written agreement. But again, comedians follow their own rule. Jokes are usually sold with a handshake. And whatever the law may say, it is clear to comedians that an oral deal is binding and that the seller has transferred all of his rights in the joke. The transfer of rights in the joke is so complete that the originator cannot even identify himself publicly as the joke’s writer. As one comedian explained: “[When I buy a joke,] it’s mine, lock, stock and barrel. [My] oral agreement with my writers is you can’t even tell anybody that you wrote the joke. You can say on a resume that you write for me but you cannot say specifically what jokes you have written for me.”

  Who’s on First?

  In copyright law, “firstness,” or “priority” of authorship, has little relevance to the validity of a copyright. If a second author happened to independently create a work that is identical to a previous work, the second creator still has a valid copyright. But comedians’ norms system favors those who get there first. Also, comedians agree that as a practical matter, when two comedians have been performing a similar joke, the first to perform the joke on television owns it exclusively. The act of doing a joke or routine on TV is, in many senses, a bit like filing for patent protection: it grants exclusive title to a joke publicly.

  Firstness also has a role in determining who owns jokes submitted to late-night talk shows. Hosts like Jay Leno and David Letterman maintain email addresses (initially these were fax lines) that comedians use to submit material for the nightly monologue. If the jokes are aired, the lucky writer gets a check in the mail. It sometimes happens, however, that two comedians send in the same basic joke; many are topical and regard the events of the day. If that happens, the first to email gets paid, and the comedian who saw his jokes aired but did not see a check following knows that she was simply too late.

  Enforcement

  A central issue with all social norms is how to enforce them. Comedians say that despite feuds like those between Joe Rogan and Carlos Mencia, copying is not very prevalent today. That makes intuitive sense: there are thousands of comics performing regularly, and each show might contain several routines, plus various scattered funny asides. Given this volume, copying does seem infrequent. But it happens. And when a comedian believes she has been copied, she’s likely to confront the suspected offender. These confrontations are, for the most part, brief, civil, and effective. Persistent copying is limited to a few bad actors who are identified as such in the community.

  To make the norms system work, though, comedians must have a reliable way to detect copying. And they do: detection is, for stand-up comedians, a community project. On the typical bill in a stand-up club there are usually several (sometimes as many as eight or ten) comedians. These comedians are often performing several nights a week, and watching other comedians. Given such wide exposure to their peers’ material, comedians are well placed to detect imitation. As one comedian put it,

  They police each other. That’s how it works. It’s tribal. If you get a rep as a thief or a hack (as they call it), it can hurt your career. You’re not going to work. They just cast you out.

  So what happens when a comedian thinks a rival has taken one of his jokes? The first step is to try to get a settlement. An aggrieved comic may confront the suspect, detail the similarities, and describe how long he has performed the joke. He might also state where the joke was performed and name witnesses. Sometimes the accused comedian admits fault and promises to stop doing the bit in question. This may happen, for example, in cases where the accused recognizes that he has borrowed from a rival without realizing it—something that the copyright law refers to as “subconscious appropriation.”

  Or the two comics may conclude that they had each come up with the joke independently. If so, the comics might agree that they will simply not perform the same joke on the same bill, or that they will each tell it in different ways or in different parts of the country. One might volunteer to drop the joke as a courtesy. Maybe the joke fits one of the comedians’ acts better, or one of them is more passionate about the joke, “needs” the joke more, or simply tells it better.19

  If an aggrieved comedian does not successfully settle a dispute and decides to pursue the matter, in most cases he will seek to impose two types of sanctions: attacks on reputation and refusals to deal. Two comedians described the process and the consequences:

  The guy [who thinks he’s been copied] is going to try to get the [other comedian] banned from clubs. He’s gonna bad mouth him. He is gonna turn other comics against him. The [other comedian] will be shunned.

  If you steal jokes, [other comedians] will treat you like a leper, and they will also make phone calls to people who might give you work. You want to get a good rep coming up so that people will talk about you to the bookers for the TV shows and club dates. Comics help other comics get work on the road.

  Although these sanctions are informal, they are powerful. Credible allegations may impair or destroy a comic’s reputation among his peers, an asset that most comedians prize. Many comedians indicated that appreciation by their peers is very important. There are perhaps 3,000 working comedians in the United States. Still, many interviewees referred to stand-ups as members of a “tribe.” In this context, a reputation for imitation can be a barrier to career success:*

  It’s a pretty small fraternity of people who make their living telling jokes. And so we kind of run into each other and see each other on TV and pass each other in clubs and hang out in New York together and you know, so there’s nothing more taboo in the comedy world, there’s no worse claim to make against somebody than “oh, he’s a fucking thief.”

  You know, there are a handful of guys [who] just have a reputation for being thieves and for the most part it’s amazing to me, actually if you think about it, how rarely it happens, because it’s so professionally useful. A joke is such—it’s hard to really exp
lain this—but, it’s a series of words that makes a room full of strangers laugh out loud consistently: it’s such a beautiful little gem. It comes along so rarely and it hopefully reveals something and it connects with them and it fits the voice and it’s short and concise and relatable and gut-laugh funny and it has to be a lot of different things at the same time.

  So the development of those little phrases is a lot of work and when someone comes along and sort of lifts that idea from you and uses it, it’s aggravating—it can’t be described how aggravating it is. The thing that’s amazing to me about it is it doesn’t happen more often. Because the fraternity of comedy and the people who book comedy, they feel like a vested interest and so they also don’t want to book someone who would steal jokes. Even once you’re already really famous you really can’t successfully run around and steal jokes and have a career. It’s amazing that there’s enough sort of self-policing within the system.

  If shunning and bad-mouthing fail to work, there is a second level of sanction. Comedians can make clear to booking agents that they will not appear in the same night’s lineup with someone they believe is a copyist. Intermediaries—club owners, booking agents, agents, and managers—may also refuse to deal with copyists. In particular, at least some booking agents, many of them former comedians themselves, disdain those who copy:

  The guys who book clubs, with a few exceptions… they don’t want to book a guy who has stolen a joke. Very often, people associated with the comedy business either used to be comics or they think of themselves as funny people and they like the business…. And so for the most part those people do it for the love of the craft. And so again, there’s sort of a built in network of folks who are trying to do the right thing. I mean if it’s a clear reputation [as a thief] and he’s trying to book himself as the middle at the Funny Bone in Omaha, [the agent] who books the Funny Bone in Omaha is likely to have heard of this and not take his calls. It could very directly hurt his career. It might end his career if he’s famous enough for doing it. It certainly will keep him down below the middle at Funny Bone level. Then he’s going to end up telling jokes at [low-class] bars and one-nighters who have a comedy night on a Tuesday, you know. And then it’s karaoke and the next night it’s trivia night. Some guys wind up in that sort of a circuit.