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Life of the Law #34 - Necessity Defense

From Life of the Law | Part of the Life of the Law series | 21:04

It’s odd to think cannibals, cannabis-growers, Vietnam War protesters, and prison escapees all have something in common. But they do: the necessity defense. We explore the origins and uses of this rare long-shot defense argument, which says in essence, “Yes, I’m guilty of committing a crime...but I had to do it."


In 1992, Harry Jack Spakes was serving out a burglary sentence in a prison near Amarillo, Texas. He did his time in a large dormitory with inmates who’d been convicted on similar charges. He’d perhaps made some bad choices in his life, but he was about to be faced with a series of impossible choices.

“On a Friday night, two officers came in cussing and turned the light on, and told me to—excuse me—‘Pack my shit.’ And this worried me.  Move me where? What? I haven’t done anything,” Spakes says.

He was transferred to a four-man, maximum security dorm. No explanation was given. His new cellmates were still in their late teens, all convicted of capital murder.

“One was in there for chopping up his girlfriend with a hatchet. Another one was in there for shooting a convenient store clerk for like, three or four dollars.  And the other one was there for burglarizing and killing a man and woman in their trailer and setting their trailer on fire,” he says.

Spakes had reason to believe he was being set up, being placed with men like this. At his previous prison, he’d filed a grievance that got a corrections officer demoted. Jack heard through the inmate grapevine that the officer was looking for revenge.

This scared Spakes. “When an officer makes a threat like that, you know it is viable. You know it can be done. Once a threat is made, you have to listen to it.”

Spakes believed this threat was now in action. But he tried to lie low and get along with his new cellmates. Then after a couple of weeks, his cellmates told him they planned to escape. They’d made a knife from a tin can top. Spakes says they wanted to hold it to a female officer’s throat, steal her keys, and escape out the back door of the prison. And if Spakes didn’t come with them, they’d kill him.

“They couldn’t leave me behind, because they were afraid that I would tell the control center that they were escaping,” he says.

And now that he knew of the plan, his cellies were watching him. “They were always there. You know, it’s never dark, you’re never alone, it’s never quiet,” Spakes says.

His choice was to break the law and bust out with these violent men, or ask a prison system he didn’t trust to protect him.

Spakes chose to escape. But he figured he could convince his cellmates to try something less dangerous and thus save both his life and the guard’s. He had once worked in construction, so he came up with a plan to get out through the prison’s ventilation system. He knew the boiler room door to the outside, by law, had to remain unlocked to prevent people from getting trapped inside.

“It worked just like that. And soon as we opened the door into the alley, closed the door, they took off, running across the street and I went in a different direction. I didn’t want to have anything to do with them.”

Here Spakes had another choice. He knew under the law, that he should turn himself in. But he was afraid to do that in this jurisdiction. He just wanted to get somewhere he felt safe.

“I wanted to contact my attorney first and I thought if I call my attorney, come get me, then we’ll take care of this,” he says

He decided to walk to the neighboring county. He walked for hours in the cold until he reached a church. “So I went inside and got a drink, and this gentlemen came out and said, ‘What did I need?’ and I said ‘I would like to make a phone call and call my attorney.’ And he said, ‘All right Jack, we know who you are.’”

The man happened to be an off-duty police officer. He brought Spakes back to prison. Now he faced escape charges—a serious felony. “Well, the jury came back and gave me 60 years. I didn’t think that I really should really get that,” Spakes says. “I felt that I was justified in committing an escape because it was the lesser of two evils. Should I die? Should I let them kill somebody?”

Spakes spent day after day in the prison’s law library. Surely the law had something to offer him. And it did – a little. Spakes came across something called “the defense of necessity.”

“In other words, I did this but I’m not guilty,” says Spakes.

The necessity defense is one of the biggest longshots in the law books. Under it, a defendant basically tells a judge: “Yes, I broke the law. I admit it. But I had no choice. And you should be merciful.”

“Why does the defense of necessity exist? It exists because there needs to be a place in the law to deal with extreme and rare situations where there are really no other defenses available to be considered,” says Joshua Dressler, a professor of law at Ohio State University. He wrote about necessity in a casebook used by hundreds of law schools. “The necessity defense is saying that people should be entitled to cause harm if it’s to prevent a greater harm and that the law is on your side.”

Dressler says necessity is not a popular defense in the U.S. because it almost never succeeds. To understand why, you actually have to go back to a case that happened in England more than a hundred years ago:Regina versus Dudley and Stephens.

Jim Brown is a local historian in Southampton, U.K.  He brought me to the memorial stone of the victim of the case. The stone is made of granite, laid down flat, with big, bold print etched onto its surface. A bouquet of fresh flowers lies in front. He reads out the etching: “Richard Parker was killed and eaten by Tom Dudley and Edwin Stephens to prevent starvation. Regina versus Dudley and Stephens, 1884, established the precedent that necessity is no defense against a charge of murder. Concerning survival, cannibalism, following the shipwreck, the case overturned the folklore of the Custom of the Sea.”

The dinghy used by the four seamen after a storm wrecked their boat, The Mignonette Copyright:  130 years old (taken at a charity event to raise funds for the accused)

The dinghy used by the four seamen after a storm wrecked their boat, The Mignonette
Copyright: 130 years old (taken at a charity event to raise funds for the accused)

The case goes back to a journey by a British yacht on its way to Australia. After nearly two months at sea, things took a turn for the worse with a tropical storm. The ship’s stern was damaged, and it  started to sink. The crew managed to get the ship’s 13-foot dinghy over the side, but then were stranded at sea in this vessel.

“They had no water except for the rains that came, and they had nothing to eat except a couple of tins of turnips,” says Dressler. “So basically, after three weeks, they were starving…and they didn’t have any reason to think they were going to be rescued anytime soon.”

The 17-year-old cabin boy, Richard Parker, had been weakened by drinking sea water. The other three “discussed the idea of that maybe one of the men should be sacrificed, and then the others could eat the remains of that person in order to survive long enough to be rescued,” Dressler relates.

And so, Jim Brown says, the captain and one other crew member killed Richard Parker: “They cut his throat, drank his blood, any moisture they could get and they ate his liver and his heart, while it was still hot, cut it into strips. And that continued for the next five days. Then they were rescued by a passing boat.

After the rescue, Dudley was convinced that others would accept what happened. Cannibalism by stranded sailors is harsh, but not unheard of. “And so when they returned to land, he was very up front up about, explained what had happened and so was very surprised when he and Stephens were charged with murder,” Dressler says.

They went on trial in December 1884. The publicity was huge on both sides of the Atlantic. In the end, the presiding judge, Lord Coleridge, ruled that the sanctity of life trumped all other concerns for survival. Dudley and Stephens were convicted of murder and sentenced to death.

“That decision basically suggests that there is no defense of necessity when a person kills an innocent individual, even if it saves five lives or one hundred lives, it won’t matter,” Dressler says

Although they lost on paper, Dressler says public support for the sailors remained so high that their death sentences were eventually commuted to just six months imprisonment. Even the family of the victim, Richard Parker, sided with his killers.

The memorial to Richard Parker in Southampton, England (a recreation of the original). Etched into its surface is: “Lord lay not this sin to their charge”, suggesting the family forgave both Dudley and Stephens for murdering Parker. Photo credit: Cheryl Brumley, 2014

The memorial to Richard Parker in Southampton, England (a recreation of the original). Etched into its surface is: “Lord lay not this sin to their charge”, suggesting the family forgave both Dudley and Stephens for murdering Parker.
Photo credit: Cheryl Brumley, 2014

Historian Jim Brown is a distant relative of Parker’s by marriage. He says the family struggled with the wording of the memorial: “’Lord, lay not this sin to their charge’ was put there at request of Richard’s older brother, because they had a lot of sympathy for those who ate him and killed him actually because it was almost the law of the sea, out of necessity,” says Brown. “They saw the logic in it, he was dying anyway and in his death, he could save others. So they felt it was justified, it was simple as that really,” he adds.

Still, the judge felt otherwise. And it’s his verdict lives on in the United States today. As a result, Dressler says, it would be almost impossible to argue here that you had to murder an innocent person. But necessity does come up from time to time in other cases.

Call it the Hail Mary Defense. That’s the position Gerald Uelman says he found himself in. Uelman served as pro-bono counsel in the 1990s for a group of marijuana cultivators, the Oakland Cannabis Buyers Collective . The group had grown and distributed medical marijuana legally in California until the federal government ordered them to stop. They refused on the grounds of “medical necessity,”arguing that marijuana made life bearable for clients with chronic conditions like AIDs, glaucoma, and cancer.

Gerry Uelman is no stranger to tough cases. He was a member of OJ Simpson’s so-called Dream Team. But he says arguing necessity before the Supreme Court? That was tough. “The result was pre-ordained. There’s no way that they were going to permit this regardless of what arguments we made,” he says.

Still, it kept the cause alive a little bit longer. And maybe that’s why necessity was also popular argument on the part some Vietnam War protesters charged with trespassing and other crimes.

“They would argue that…I’m trying to do stop a war…therefore I’m doing the lesser of two harms by trespassing, non-violently on property in order to prevent violence in Vietnam,” Dressler says. “And usually when those kind of cases occurred, judges wouldn’t even permit the jury to consider the defense of necessity.”

So cannibals, cannabis-growers, and activists all tried and failed with the necessity defense. But there is one place—at least in US law—where it sometimes works: prison escapes. Back in Texas, inmate Jack Spakes was serving an extra 60 years on his sentence for escape. But the necessity argument gave him hope. He’d run across a case from the 1970s, “The People v. Lovercamp ,” which set out five conditions for necessity to escape.

So Spakes worked up an argument with his attorney. In court, though, the judges weren’t sure whether he met the final condition: “The person immediately reports to the proper authorities when he has obtained a position of safety from the immediate threat.”

Spakes argued in return that the prison he escaped from was not a safe place. His case made it up to the Texas Court of Criminal Appeals, the highest court in the state, and a place necessarily known for taking an inmate’s side.

In the end, the judges made a surprising ruling in Spakes’s favor. They weren’t just thinking about Spakes’s situation; they were also reviewing how lower state courts had handled necessity. In the end, the judges held that Texas courts actually have no business denying the necessity defense: Not to Jack Spakes, nor anyone armed with a credible necessity argument who is brave enough to try it out on a judge or jury. The Court would leave that up to the satelegislature to decide whether the defense could or could not apply to a specific charge.

“I know of frankly no other state that takes that position. Whether other states will look to Texas, remains to be seen,” says Dressler.

“It’s a landmark decision in the state of Texas now. I feel proud that I was able to put the pieces together and make a complete picture of the puzzle,” Spakes says. He is now out of prison on parole.

But he still goes back to talk with inmates about getting an education. And once, he was approached by one of the former cellmates—apprehended the same day as he was—who’d forced him to choose between escape or death. “He started crying, and he came to me and hugged me. He said: ‘I am so glad I did the things you told me to do. I started studying the law. I’m going to start getting an education.’ I told him, ‘The more you learn the more you put in your head. They can’t take that away from you. Get off the weights. The weights won’t keep you out of prison. But knowledge is something that will never be taken away from you.’”

Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College was the scholarly advisor on this story.

Cheryl Brumley works at the London School of Economics, producing narrative podcasts for their award-winning academic blogs.   She is also a freelance radio reporter, producer and researcher, and worked at the BBC World Service/Global News division and for the weekly radio show, The Forum. Previous to working in radio, Cheryl worked in the British House of Lords and at an NGO in Amman, Jordan.

Life of the Law #33 - The Hardest Time: Moms In Prison and an interview with Piper Kerman

From Life of the Law | Part of the Life of the Law series | 24:57

Mother’s Day is the one day of the year we set aside to honor mothers. Some do it with flowers and cards. For women who are in prison and their children who are being raised by grandmothers, aunts or guardians on the outside, the day can be especially difficult. In California, non-profit organizations, volunteers and the prison system work together to bring the children of incarcerated mothers to the prisons throughout the month of May so they can spend one day celebrating motherhood. Throughout June, Get on the Bus works to bring children to see their father’s who are incarcerated in celebration of Father’s Day.


On a recent Saturday, I went to Folsom State Prison Women’s Facility to see what “Get on the Bus” is all about.  It took more than an hour for the toddlers and teens and their guardians to get through security, but when they finally burst through the doors and onto the women’s yard where 30 mothers were waiting, it was pure happiness.

Part 1

Prison Nurseries

By Audrey Quinn

The ongoing separation of imprisoned mothers from their children is fraught for everyone involved including the prison system itself.  Life of the Law sent reporter Audrey Quinn out to look at some alternatives to this kind of traumatic separation. The programs are few and far between, but show ways the system can lessen the punishment on young children as their mothers serve time.

Audrey’s Story:

On January 29th 2013, Diana was on her way to get a sonogram.

“And the minute I turned on my car,” she remembers, “they pulled up on the side and told me to get out the car. They put the handcuffs on me and took me in.”

Diana asked us not to use her last name for reasons related to her arrest. She’s a 23 year old from Queens, New York. That day in January, she found herself in a jail cell at Rikers Island, seven months pregnant.

“They had told me that I was under arrest because of what my boyfriend did,” she says.

Her boyfriend, the baby’s father, had gone to jail ten days earlier. He’d sold drugs to an undercover cop. The cop had come to their home and caught the sale on video.

“I was in my room minding my business,” she says of that day, “when the officer came in, and my boyfriend had called me and told him to pass him a bag that was in the room. And that’s where the drugs came out of. And that’s what I’m in the video doing, just giving the black bag.”

Diana faced a felony charge as an accomplice to a drug deal. She says nobody at Rikers would really tell her what was going on.

“At first it was like I couldn’t sleep,” she recalls. “I was scared of, maybe if I’m sleeping somebody decides to come behind me and hurt me or something. Because I’m pregnant and they feel like I can’t defend myself. It was really hard.”

She says she did get medical care. “They would give me my prenatal pills. If I were to get sick or whatever they would take care of me, they had their nurses who would help us.

“They fed us, “ she continues. “I mean, the schedule wasn’t all that great and the food wasn’t all that great but at least they fed us. I would sometimes not even eat because the food was so nasty. But I was pregnant: I had to feed my son so I had to force myself to eat.”

Diana later found out that pregnant women at Rikers get taken to a hospital to give birth. But she didn’t know that while she was at the jail.

“I was just thinking the crazy things that would go on if I was to give birth in there,” she says. “I just thought, honestly, that they would take the baby away, and either a family member had to pick him up and take care of him, or the system took him.”

Diana’s story is more common than you might expect. Four percent of women prisoners enter prison pregnant – that results in thousands of babies born in the correctional system each year. But as far as what to do with these babies, or their mothers, the US lacks any national policy .

In most European countries , incarcerated mothers keep their newborns in prison with them through preschool age. The US followed the same protocol until the 1950s, but by the seventies, most states had ended these programs.

New York is one of the only states that still has a small prison nursery program, and Bedford Hills Correctional facility has the oldest prison nursery in the country. In 1998, Mary Byrne , a professor at Columbia University School of Nursing, visited Bedford Hills with some students.

“As I discovered the prison nursery,” she says, “my question was…‘Is this good idea?’”

Byrne wondered if kids could develop normally after starting life in prison. Advocates believed that keeping a baby together with his or her imprisoned mom could help the mother-child bond, but few had researched the topic. Byrne decided to study prison nursery moms and their kids.

Women who are pregnant when they come to Bedford Hills can apply for the prison nursery. Only a few dozen are accepted – the rest have to give up child custody while they serve out their sentences. The prison superintendent at Bedford Hills makes that decision, and those who are chosen are allowed to keep their babies in prison for a year, sometimes longer if they’re getting out soon.

“To me,” Byrne says, “what I would liken it to, as I watched the mothers raise these infants in this setting, is that it was very much like working mothers on the outside.”

While Byrne was at Bedford, two or three mom and baby pairs shared a room, housed in a separate wing from the other prisoners. These days, there are fewer women in the nursery, so each pair has a room to itself. In the mornings, moms go off to their prison jobs and their babies go to the nursery, like kids outside of prison go to daycare. The moms also receive parenting classes.

A Department of Corrections study found having a baby in a prison nursery makes a woman twice as likely to stay out of prison later. Byrne decided to conduct her own research , following sixty of the babies from the Bedford prison nursery until the age of eight She compared their development to kids in the general population.

“The children overall did very well,” Byrne concludes. “The children are for the most part in their grade for their age level and doing well in school. And their parents send us pictures and report cards, unbidden, and letters, and are really so very proud of their children’s achievements.”

Byrne’s most surprising finding has to do with attachment.

“There’s a process,” she explains, “that goes on through the first two years of a child’s life, related to being able to identify a primary caregiver, investing trust in that caregiver, and knowing that that caregiver will be there in times of fear, or illness, or loneliness. So the child can wander away and try out new things, but has a secure base to return to, and feel protected.”

Byrne interviewed moms in the nursery, and found most of them lacked this kind of secure attachment with their own parents. Most researchers agree that if a mother lacked attachment growing up, she will find it difficult to ensure that her own children attach. But Byrne found that 70 percent of the babies she studied managed to form secure attachment with their moms – more than in the outside world.

Despite these findings, prison nurseries are extremely rare. Byrne once counted all the available spots in prison nurseries across the United States and found only 135. Which means, for all intents and purposes, a baby born to a mom in a US prison is a baby that will not know his or her mom, maybe for a long while.

Georgia Lerner leads the Women’s Prison Association in New York. She says support for moms shouldn’t have to be found in prison.

“They are not really places that are supposed to be schools, psychiatric hospitals, medical hospitals, childcare facilities. They were not designed to provide all of these services. And it’s one of the reasons I don’t think it makes a whole lot of sense to send so many people to prison when there are so many issues that could be better addressed in the community where we already have schools, we already have healthcare facilities, we already have mental health providers.”

The Women’s Prison Association started in the early 1800s. Back then, they had to make sure woman got their own prisons, apart from men. These days, they focus on keeping women out of prison when possible – including Diana.

After seven weeks at Rikers, Diana got out on bail just before she gave birth. Her grandmother took her in, to her apartment in Queens. Diana was still going back and forth to court. If she didn’t plead guilty, the judge told her she’d face three to five years in prison.

If Diana did plead guilty, she could get into a drug recovery program instead of doing time – a common occurrence for drug offenders, even non-addicts like Diana. But the drug program was residential, so she’d have to leave her son.

Fortunately, the district attorney put Diana’s public defender in touch with the Women’s Prison Association. They’ve convinced courts to try community-based alternatives, programs that let women stay at home with their kids. They interviewed Diana to make sure she was a good fit for an alternative to incarceration program, and eventually accepted her. For six to eight months, Diana will meet with a counselor and go to group sessions, all while she’s on probation.

Even though alternative to incarceration programs are expanding, more and more women are still going to prison. The US now incarcerates six times as many women as it did thirty years ago. Many of those women are mothers.

Tamar Kraft-Stolar is the director of the Women in Prison Project at the Correctional Association of New York, an organization that monitors women’s prisons in the state.

“If you had to pick probably a defining legacy of the incarceration of women,” Kraft-Stolar says, “it would really be the destruction of families.”

Two months into her alternative to incarceration program, Diana says, “I honestly wish it wouldn’t ever be over.

“I thought [the program] was just going to be about jail and drugs, but it’s not,” she continues. “It’s more so learning about yourself and listening to others stories. I really like group.”

Diana’s support group meets every Friday, and her counselor comes to the house three times a week. She has another four to six months to go, depending on the judge’s determination of her progress.

The boyfriend is serving a nine-year sentence in an upstate New York prison. Diana and the baby visit him every couple of weeks, but Diana’s counselor’s helping her move on as a single mom. She’s still living at her grandma’s place, but she’s working on financial stability, applying for jobs in retail.

She’s also thinking about going back to school, getting a degree. But for now, Diana says she just feels lucky to be with her son.

“He makes my day just got by faster,” she says with a smile. “He doesn’t really cry much; he’s just a happy baby. I’m blessed.”

Part 2

Pregnancy and Prison

By Nancy Mullane

Nancy Mullane with Piper Kerman

Nancy Mullane with Piper Kerman

Piper Kerman spent nearly a year in federal prison, and tells the true story about her experiences in the book, “Orange is the New Black.” The book is also the basis for the Peabody Award -winning series on Netflix. The show’s dark humor and plot twists have both surprised and disturbed viewers, particularly when it comes to pregnant inmates. She’s not an activist for prison reform, and speaks out on behalf of prisoner rights. Recently, I had the chance to speak with Kerman in San Francisco for the City Arts and Lecture’s series. Afterwards, I asked her about how pregnant women and mothers are treated in America’s prisons. Kerman believes women who are pregnant should not be incarcerated at all, unless it is absolutely necessary.

Piper Kerman and Nancy Mullane


City Arts and Lectures, San Francisco, March 31, 2014

Get on the Bus Program

Life of the Law #41 - Who Owns That Joke?

From Life of the Law | Part of the Life of the Law series | 18:43

Comedian Carlos Mencia is notorious for stealing other comics’ jokes. But he’s never been sued—in fact, there are almost no lawsuits in comedy. On this episode of Life of the Law, what the law means to comics, and what they do when it can’t help them.


You may know Carlos Mencia from the show Mind of Mencia on Comedy Central back in 2008. He’s pretty famous—and pretty infamous. He’s notorious in the comedy community for stealing jokes.

“If I’m doing a show and Carlos Mencia walks in…I have no reason to believe that he would ever steal a joke from me or an idea from me, but if I see him in the back of the room that’s going to be in my head the whole time I’m telling jokes,” says Rory Scovel, a stand-up comic based in LA who also currently appears in the TBS sitcom Ground Floor . “Because if he decided to steal the joke, he would probably just get to have the joke and do it on his next special, and he would make money off of a joke that I thought of.”

Comedian Rory Scovel stars in the TBS comedy, Ground Floor

Comedian Rory Scovel stars in the TBS comedy, Ground Floor

Scovel is not alone. There are many examples of this actually happening. Take, for example, this joke that Bill Cosby did on stage in 1983, about a boy and his dad playing football:

You grab the boy when he’s like this, see. And you say, “Come here boy!” Two years old—you say, “Get down, Dad’ll show you how to do it. Now, you come at me, run through me. There, see? Get back up, get back up—you didn’t do it right. Now, come at me!… Go, attack that tree, bite it! Come on back, bite it again!” You teach them all that… And he goes to the big college, playing for a big school, three million students and eight hundred thousand people in the stands—national TV—and he catches the ball and he doesn’t even bother to get out of the way, he just runs over everybody for a [touchdown], and he turns around and the camera’s on him and you’re looking and he says, “Hi mom!”

Mencia did a strikingly similar joke on stage in 2006:

He gives him a football and he shows him how to pass it. He shows him every day how to pass that football, how to three step, five step, seven step drop. He shows him how to throw the bomb, how to throw the out, how to throw the hook, how to throw the corner—he shows this little kid everything he needs to know about how to be a great quarterback. He even moves from one city to the other so that kid can be in a better high school. Then that kid goes to college and every single game that dad is right there. And he wins the Heisman Trophy, ends up in the NFL. Five years later he ends up in the Super Bowl. They win the Super Bowl. He gets the MVP of the Super Bowl. And when the cameras come up to him and say, “You got anything to say to the camera?” “I love you mom!” Arrrgh!

Hearing this, it may seem pretty obvious what’s going on—Mencia is stealing Cosby’s joke. But when comedian Marc Maron confronted Mencia in a 2010 interview, Mencia said he doesn’t steal—at least, not intentionally.

“I am a sponge, so to speak,” he said. “But I’m also aware of jokes that I do that I go…hmm, I don’t know anybody specifically  so much as I know that this is out there.”

The legal question

If you’re a comedian, it’s part of your job to soak things in like a sponge. But where is the line between soaking something in like a sponge and straight-up stealing?

Christopher Sprigman, a professor at NYU School of Law who focuses on copyright law, says that comedians have their own informal set of rules when it comes to joke ownership. In the world of comedy, people don’t really use the law to prevent stealing. Instead, they self-police.

“These aren’t laws. They’re just norms of the community about who owns jokes—how you come to own a joke, and how you can sell a joke, and how close you can come to someone else’s jokes,” Sprigman says. “And they’re enforced through community action.”

That community is small. Comedians go to each other’s shows all the time. So if someone sees a comic doing someone else’s bit, they’ll say something. Word gets around. And usually that’s enough.

But what about the Carlos Mencias of the comedy world? What happens when talking it out isn’t an option, because the comic who’s stealing from you is much more well-known, or even just because he or she insists it isn’t happening? Turns out, the law really doesn’t have an answer. And to understand how we got here, we need to go back in time.

The old system of the corn exchange

When my grandfather was growing up in Louisiana in the 1940s, jokes were just kind of around. There were even staple characters in jokes—Boudreaux, for example, is one of his favorites. He doesn’t write the Boudreaux jokes he tells. He just knows them.

Sprigman says the first stand-up comedians were coming out of the same tradition as my grandfather. “If you think about stand-up comedy back in the 1940s and 1950s, it was based around the joke slinger—the stand-up comic who grew out of the vaudeville style of one-liners, joke after joke after joke.”

No one owned these one-liners, exactly. Comedians took each others’ jokes all the time. There was even a name for it: the corn exchange. The corn exchange wasn’t anything formal. It was a blanket term for all of it (including at least one instance of a comedian buying another’s joke file after he died).

Digital still image from "Goodnight, We Love You: The Life and Legend of Phyllis Diller" (2004)

Digital still image from “Goodnight, We Love You: The Life and Legend of Phyllis Diller” (2004)

Sprigman remembers going to the Smithsonian to research Phyllis Diller’s joke file. There, he found tens of thousands of index cards with jokes scrawled on them. Some were original—others, not so much.

“She loved a comic called the Lockhorns, which was a comic about this married couple that was always at war with one another,” he says. “For years, she obsessively followed this comic strip, and she cut out a lot of the panels out of the newspaper and pasted them onto index cards that ended up in the joke file.”

And then they also ended up on stage, when she talked about her fictional husband, Fang. (“Of course you know, my husband, Fang, he won’t come into the kitchen because he’s afraid of rats. But then he comes in at noon because he knows they eat out.”)

The Lockhorns

The Lockhorns

Comedy (and everything) changes

So in the 40s and 50s and early 60s, a lot of comedians are doing this. But in the late 60s, things start to change in comedy, in part because they’re changing everywhere in the US. Over the 19th and 20th centuries, copyright law has gradually expanded, adding more and more protections to creative works from music and movies to books and computer software. More people care about owning their work, and laws are following suit. But comedy gets left behind. And according to Sprigman, the reason why that happens comes down to something pretty simple: who can lobby.

In the film and music industries, a handful of studios dominate. But not in comedy.

“Comedy is not corporatized in the same way,” he says, “These are individual proprietors. There are several thousand of them traveling around the national comedy circuit. And they operate at a very small scale. So there’s no powerful corporate player who owns enough of this business to actually lobby for changes to policy.

By the ‘80s, the transition is complete. The corn exchange is history. Now, even without the law behind them, comedians care about protecting their work. One way to do this is to make your stuff more personal, harder to steal.

“So think of Sarah Silverman, right,” says Sprigman. “She has a very detailed comic persona. She’s this smart but very obtuse moral monster.” (Consider, for example, Silverman’s joke that starts, “Guess what, Martin Luther King? I had a fucking dream, too. I had a dream that I was in my living room. It wasn’t my living room but it was like playing my living room in the dream…”)

Sprigman says that if someone takes a Sarah Silverman joke, people would probably catch on, because her jokes fit so closely to her comic persona.

Today, you can find scores of lawsuits among artists in other genres—photographers, musicians, writers. But there are virtually no copyright lawsuits between rival comics. No one has even sued Carlos Mencia (although there is a South Park episode where Kanye West kills Mencia over a joke). This is because copyright protects original expression, but it doesn’t protect ideas. So often, if you wanted to avoid the copyright on a joke, you could just tell a joke a little bit differently, preserve the joke that animates the punch line, but just change the expression.

Sprigman says you can find some lawsuits by comedians against people who take their jokes and make t-shirts—but not against other comedians who take their jokes and make money. Ironically, money is a big reason for that—copyright is enforced through federal court litigation. That’s very expensive. “It’s typically not worth it for a comic to file suit over a stolen joke, even if it’s a good joke,” says Sprigman.

In this realm outside the law, the gray area is pretty significant.

“It’s something we call in comedy parallel thought,” says Rory Scovel. “Two comics can have the same joke not having stolen the premise or punchline at all. There are just some jokes that are a conclusion that you could easily come to.”

This gray area is one reason why even if comedians did want to organize and push to be covered under copyright law, it would require a lot more than just adding a simple clause like, “stealing jokes is now illegal.” You’d basically have to overhaul the whole thing.

“You’d have to trim back the distinction between ideas and expression,” says Sprigman. “You’d have to protect ideas much more than copyright law does now. You’d have to loosen up the rules about proving copying even further than they are now. You’d have to have some kind of copyright small claims court, a streamlined procedure not as expensive to access and that doesn’t require legal representation, or at least not very expensive legal representation. You’d have to basically remake copyright in the image of comedians.”

And he doesn’t think that would be a good idea.

“There is a danger that if we propertize ideas or styles or trends, what we do is we basically impoverish the culture. We don’t promote progress, which is what the Constitution says that copyright has to do. We retard progress, and we don’t want to do that. I think that remaking copyright law in the image of comedians would potentially do very little for comedians and potentially do a lot of harm.”

So for now? Comedians are on their own, making us all laugh, and keeping an eye on the back of the room.

Mary Adkins is Senior Editor at Life of the Law. This podcast was edited by Casey Miner with Sound Design and Production by Life of the Law’s Senior Producer, Kaitlin Prest.