The standard copyright rap holds that creators need to bottle their work in objects in order to make money from it, but distributing the objects creates the risk that pirates will take the objects and copy them without compensating the creators. Copyright in the creative “work” allows the creators to stop the pirates and capture enough money to keep them in the creative object business. The money encourages them to generate new work and “works.” I added quotation marks to “work” to distinguish the stuff that creators create from the stuff that copyright protects.
Not long ago Chris Sprigman and Dotan Oliar, among other scholars, pointed out that there are domains where creators create yet pirates don’t take — even without copyright. Take stand-up comics (please). Stand-up comics generate a lot of new jokes, and stand-up comics live by a social rule that keeps rivals from stealing each others’ material. Copyright is (mostly) irrelevant. There was a virtual symposium on the topic. My comment pointed out, among other things, that you can’t understand the implicit, norm-driven economics of stand-up comedy without taking account of the explicit, formal, property rights-driven market for objects. It was relatively easy for stand-up comics to follow a n0-theft rule because they made most of their money by selling record albums. Social norms may have encouraged new work but property law encouraged new “works.” Sprigman and Oliar responded.
In today’s NYT, Mel Brooks and Carl Reiner — not best known as stand-up comics, but what the heck — remember the genesis of their 2000 Year Old Man skits (Brooks as the 2000 Year Old Man, Reiner as the modern straight man). The piece includes an exchange that sheds a little light on the question: What’s the relationship between informal “no theft” norms and formal markets for creative “works”?
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.
Don’t read too much into a single exhange remembered almost 60 years after the fact, especially when the one reporting the exchange is credited with a fictional play titled “Springtime for Hitler.” Still, this is interesting. 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.
As everyone knows, George Burns went out and eventually became God, who, as everyone also knows, stole nothing and created everything. God is not an infringer. In copyright terms, making the album did what it was intended to do.