Passage A

Comedians are not amused when their jokes are stolen, and for that reason we might expect joke-stealing disputes to ripen into lawsuits occasionally. Copyright is the most relevant body of law; formally, it applies to jokes and comedic routines. Yet copyright infringement lawsuits between rival comedians are all but unheard of, despite what appears to be a persistent practice of joke stealing among stand-up comedians. The nonexistence of such lawsuits is a product of both practical considerations that render the cost of enforcing the formal law prohibitively expensive, and legal hurdles that make success difficult and uncertain in lawsuits relating to joke stealing. In the end, copyright law simply does not provide comedians with a cost-effective way of protecting their comedic material.

Conventional intellectual property wisdom holds that absent formal legal protection, there would be scant production of creative works, as potential creators would be deterred by the unlikelihood of recouping the cost of their creations. If there is no effective legal protection against joke theft, then why do thousands of comedians keep cranking out new material night after night?

The answer to this question is that, in stand-up comedy, social norms substitute for intellectual property law. Taken as a whole, this norms system governs a wide array of issues that generally parallel those ordered by copyright law. These norms are not merely hortatory. They are enforced with sanctions, including simple badmouthing and refusals to work with an offending comedian. These sanctions, while extralegal, can cause serious reputational harm to an alleged joke thief, and may substantially hamper a comedian's career. Using this informal system, comedians are able to assert ownership of jokes, regulate their use and transfer, impose sanctions on transgressors, and maintain substantial incentives to invest in new material.

Passage B

Accomplished chefs consider their recipes to be a very valuable form of intellectual property. At the same time, recipes are not a form of innovation that is effectively covered by current intellectual property laws. Recipes are rarely patentable, and combinations of ingredients cannot be copyrighted. Legal protections are potentially available via trade secrecy laws, but chefs very seldom use them. Instead, three implicit social norms are operative among chefs, and together these norms function in a manner quite similar to law-based intellectual property systems.

First, a chef must not copy another chef’s recipe innovation exactly. The function of this norm is analogous to patenting in that the community acknowledges the right of a recipe inventor to exclude others from practicing his or her invention, even if all the information required to do so is publicly available. A second norm mandates that, if a chef reveals recipe-related secret information to a colleague, that colleague must not pass the information on to others without permission. This norm gives a chef a property right similar to that attainable via a contract under trade secrecy law. A third norm is that colleagues must credit developers of significant recipes as the authors of that information. This norm operates in a manner analogous to copyright protection.