While the law doesn’t provide much in the way of protection for comedians, Oliar and Sprigman found that today’s comics do maintain an informal set of rules. If two comics come up with a similar joke, for example, it’s understood that whoever tells it first on television can claim ownership. Similarly, if two comedians are working on material together, batting ideas back and forth, it’s generally agreed upon that if one comedian comes up with a setup and the other the punch line, the former owns the joke.
Those who don’t follow the rules can face escalating repercussions. First they’re subjected to badmouthing; then they get blacklisted from clubs. Finally, if the unacceptable behavior continues, it’s understood that things might get physical. While none of the comics Oliar and Sprigman interviewed admitted to participating in or witnessing fights over stolen jokes, many had heard stories, and they accepted such violence as a possible, if remote, outcome. As one comedian told the researchers, “ … the only copyright protection you have is a quick uppercut.”
Far from being dismayed by this extralegal system, Oliar and Sprigman came away impressed by the comedians’ informal arrangement. “They have managed to put together a community project that requires a pretty high-level amount of group coordination,” says Sprigman. It’s a lot better than the joke-stealing free-for-all of [Milton] Berle’s era. And it’s hard to imagine a more formal joke protection system, involving copyright filings and other legal procedures, working well in a world where comics are constantly generating and tweaking new material. In fact, Sprigman thinks this joke-stealing code could work for other industries struggling with how to balance creativity and copyright issues, including the music and tech industries. They should borrow it.