VIRGINIA LAW REVIEW
APRIL 20, 2009
DOES EQUITY PASS THE LAUGH TEST?: A RESPONSE TO
OLIAR AND SPRIGMAN
Henry E. Smith*
OPYRIGHT law may not be the answer, but what is the question?
Dotan Oliar and Christopher Sprigman explore an example of a
norm system—the one among stand-up comedians against joke theft—
and show why it is likely superior to use of copyright to protect rights in
jokes.1 In the course of their study they document both how formal
copyright law is unsuited to protecting comedic material and what type
of norm system, enforced by other comics and booking agents, has
sprung up in its stead. From a property point of view, the likely bi-causal
relationship between the development of the antiplagiarism norm and
the rise of narrative, observational, and social commentary-style comedy
out of earlier vaudeville and post-vaudeville styles is now, thanks to
Oliar and Sprigman, one of the better documented cases of Demsetzian
development we have.2 Oliar and Sprigman also argue that for all its
dangers of mob justice and extreme simplicity, the norm system does
protect investments in developing comedic material and is likely more
* Professor of Law, Harvard Law School. Email: firstname.lastname@example.org.
1 Dotan Oliar & Christopher Sprigman, There's No Free Laugh (Anymore): The
Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94
Va. L. Rev. 1787 (2008).
2 See Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347–48,
350–58 (1967) (Papers & Proceedings); see also Symposium, The Evolution of Property
Rights, 31 J. Legal Stud. S331 (2002).
Virginia Law Review In Brief
effective and desirable than an enhanced copyright law that might well
crowd out the norms system.
Oliar and Sprigman's article also poses a potential challenge to
property theorists. Very interestingly, they show how the anti-joke-
stealing norm is far simpler than copyright law in that the no