A couple of times in the past we’ve looked at the question of copyright on jokes, noting that there generally isn’t “copyright” on jokes, but that copying jokes can potentially hurt someone’s reputation if called on it. In other words, even without making use of protectionist laws, creative types figure out social norms for punishing those who just “copy.” Yes, some of the copying still occurs, but it can seriously hurt someone’s reputation. At the same time, for those who do copy, it pushes them to actually do much more with a joke to actually stand out.
The more you think about this, however, the more interesting it gets. Michael Scott points us to discussion by Mike Madison concerning copyright and jokes, where he points to a short snippet from a NY Times article on the very famous “2,000 year old man” sketch done by Mel Brooks and Carl Reiner. The snippet that interested Madison was this one:
REINER We did [the 2000 Year Old Man routine] out here in Los Angeles at what you would call a Class A party. One by one people came over to us. George Burns came by with a cigar and said, “Is there an album?” I said no. He said, “Well, you better put it on an album, or I’m going to steal it.”BROOKS That’s true, he said he was going to steal it.
REINER Edward G. Robinson, who was there, said: “Write a play. I want to do it on Broadway.” And the one who came up to us and really made sense was Steve Allen. He said you have to make an album.
As Madison notes:
The standard rap says that you make an object and people might copy it (“steal” it), so you have to have rights to go after the thief. Here, the rap is turned inside out: You make an object in order to keep people from copying it. Social norms are still important, because they have something to do with why and how making an album would keep George Burns from becoming the 2000 Year Old Man. But they aren’t everything.
Madison’s argument is that social norms alone aren’t enough to keep people from copying in the absence of copyright — but that setting the work in some sort of fixed form helped do the trick. Still, I’d argue this is a part of the “social norm,” because it was a way of planting the flag by Brooks and Reiner that this was something they had created — such that if anyone else copied it, people could easily point to the album and say “George Burns copied that,” such that Burns would have less credibility. Burns, then wishing to avoid the loss of credibility, has less reason to copy.
Now what I find most interesting about all of this is that it runs entirely counter to the arguments made by many copyright maximalists, who say that without the incentive of copyright, creators would have little incentive to create such a recording, for risk that it would then be “pirated.” But, what this shows (in an admittedly anecdotal fashion) is that there are additional incentives for putting the work into a fixed form: such as planting a flag for the sake of reputation and to ward off copying.
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