Kal Raustiala, a Professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a Professor at the University of Virginia Law School, are counterfeiting and intellectual property experts who hang out at the Freakonomics blog, and their latest post discusses how the world of stand-up comedy deals with joke theft. Some of the commentary will remind you of the Monty Python sketch in which a professor dryly lectures (with demonstrations) on the art of slapstick, but their observation is important: professional comics have developed a series of standards, enforced informally by such methods as shunning, shaming, and confrontation (and the occasional punch in the face) to discourage theft of a form of intellectual property that cannot be efficiently protested by copyright or trademark law.

I don’t believe the article ever mentions ethics, but the evolution of professional ethical standards are really what is being described. The previous culture, nourished in vaudeville and burlesque, did not condemn joke and comedy routine stealing to anything approaching this extent, for many reasons. It was a time before mass media, and many comedians could use similar material without impinging on the other’s livelihood. A great deal of material was treated as common property, old jokes, gags and routines that would “belong” to whoever performed them best. Indeed, as a scholarly paper on the topic documents, when the emphasis in the comedy business was on personality and performing skill, content wasn’t valued sufficiently to make the theft of it worth policing. But as television and the web consumed material faster and faster, and comedians found themselves in direct competition on YouTube and Comedy Central, stealing original material came to be regarded as unethical, for the same reason any conduct becomes unethical: it does more harm than good. Gradually, comics also learned that allowing all jokes to be considered common property worked as a disincentive to creativity. Nobody was laughing at the old jokes any more, and there needed to be a benefit realized by the comics who wrote new ones.

Raustiala and Sprigman pronounce the new system a success, and to the extent that it discourages joke theft without requiring legal action, they are right.  The new culture, however, nurtures joke writers rather than performers, and whether that will prove to be in the best interests of comedy, only time will tell. Most of the current stars of stand-up are a pretty bland batch compared to their predecessors from the post-vaudeville era, and it seems like the best performers are the comics who are being punished for stealing material—material that they can probably make funnier than the jokes’ originators. I think the ethics of comedy in this issue is a work in progress..,but then, ethics always is.