INTRODUCTION 1314 I. CLOWNING AND LAW 1318 A. A History of Clowning 1319 B. A Typology of Clowns 1322 C. Clowning and Formal Law 1325 II. CLOWN NORMS 1332 A. The Antiappropriation Norm 1333 B. Defining Improper Appropriation 1336 C. The Enforcement of Clown Norms 1341 III. THE CLOWN EGG REGISTER 1344 A. The Register's Origins 1344 B. The Property Puzzle of the Clown Egg Register 1353 C. Explaining the Clown Egg Register 1355 1. Exclusion Theories 1355 a. Evidentiary 1357 b. Cautionary 1359 c. Channeling 1361 2. Nonexclusion Theories 1362 a. Signaling 1363 b. Belonging and Prestige 1366 c. Posterity 1367 d. Costly Screening 1368 IV. PROPERTY REGISTERS BEYOND EXCLUSION 1370 A. Signaling 1370 B. Belonging and Prestige 1372 C. Posterity 1376 D. Costly Screening 1377 CONCLUSION 1379 INTRODUCTION
In 1946, an English chemist named Stan Bult began painting portraits of clowns on chicken eggs. (1) The eggs featured members of the International Circus Clown Club (ICCC), of which Bult was the founder and secretary, as well as famous historical clowns. (2) Today, the organization has been renamed Clowns International (CI), but the tradition of memorializing clown makeup designs continues. (3) Newly painted clown eggs are publicly displayed alongside surviving examples of Bult's work as part of the Clown Egg Register ("the Register"), (4) housed in Wookey Hole, a sprawling tourist attraction in the countryside of Somerset, England. (5)
In the intervening seventy-odd years, this practice has been an object of ongoing fascination. Early on, Bult and his eggs were featured in newspapers, magazines, and television reports. (6) More recently, various websites and news outlets have highlighted the Register. (7) The eggs have received considerable attention as art objects. (8) And the Register has seeped into pop culture as well. It inspired the Hall of Faces in Terry Pratchett's fantasy book series Discworld, (9) played a pivotal role in an episode of the classic BBC show The Avengers, (10) and figured prominently--in a darkly modified version--in the creepy-clown indie horror flick Stitches. (11)
Throughout this seven-decade cultural conversation about clown eggs, a surprising number of references to property and ownership emerge. Sources refer to the eggs not just as miniature portraits, but as a register designed to preserve the uniqueness of performers' identities by fending off copying. (12) Interviews with Bult and others reveal that clowns regard their personae as "property." (13) And observers refer to the need to safeguard clowns' "copyright" in their makeup designs. (14) This Article takes up these cues, examining the Clown Egg Register from the perspective of law and social norms. This investigation reveals a trove of insights about the tradition of painting clown eggs. The eggs highlight clowns' use of norms, rather than state-created law, to govern their creative production. They show how extralegal registers operate not only to back up informal exclusion rights, but to serve a host of other social functions as well. And they point toward the underappreciated ways that other ownership registers from land title recording to copyright registration also serve nonexclusion functions.
This Article is the first serious and systematic effort to describe and analyze the Clown Egg Register and the informal regulation of creativity among clowns. To better understand these norms and the Register that supports them, we conducted a series of qualitative interviews with working clowns in the United States and the United Kingdom, current and former administrators of the Register, and the current clown egg artist. (15) Our interview subjects included former Ringling Brothers and Barnum & Bailey Circus clowns as well as semiprofessional event clowns. They included both men and women and ranged in age from their twenties to their seventies. We also consulted all historical and contemporary sources that comment on the Clown Egg Register.
Through these interviews, we discovered that clowns, like many other creative communities, demonstrate a preference for private, informal ordering rather than formal law. Like chefs, (16) drag performers, (17) graffiti writers, (18) magicians, (19) physicians, (20) roller derby athletes, (21) standup comedians, (22) and tattooers, (23) clowns regulate creativity and copying primarily through community self-governance. The account of the norms that prevail within the clowning community, while unique in several key respects, is consistent with the growing literature on intellectual property (IP) and social norms. By adopting, communicating, and enforcing a shared set of expectations about copying, clowns have largely avoided conflict and manage to address it effectively when it occurs. And they have done so while avoiding the significant transaction costs imposed by formal law.
The Clown Egg Register is also a fascinating and truly unique iteration of a very familiar institution, the property register. From the recordation of real property transfers (24) to vehicle title registration (25) to trademark (26) and copyright registration, (27) the formal legal system has developed mechanisms for tracking and publicizing ownership interests. The typical justifications for these registries are rooted in the legal rights they support. Registries provide strong, and in some cases definitive, proof of priority and ownership. (28) That proof is often crucial in resolving disputes between competing claims. Registries can also provide notice of ownership interests that facilitate transactions and avoid conflicting claims, all of which supports owners' rights to exclude. (29) But the Clown Egg Register presents a puzzle. Although the Register supports this system of norms, those norms appear to function largely independently of the Register. Many clowns, such as most professional circus clowns, typically do not seek inclusion in the Register. (30) In terms of time and effort, the Register is an immensely costly enterprise. So why does it endure?
In light of the somewhat attenuated relationship between the Clown Egg Register and the norms-based system it is intended to facilitate, standard exclusion-based justifications fall short of fully explaining the continued centrality of the Register. We identify a range of nonexclusion functions of the Register that both help explain its persistence and offer lessons for registration systems more broadly. (31) The Register facilitates the professionalization of clowning and signals its value to the public. It also contributes to a sense of community among clowns and serves as a source of prestige. Moreover, the Register creates a durable archive of clown makeup designs, preserving the art form for posterity.
The nonexclusion functions we identify are not confined to the Clown Egg Register. Indeed, registers for both physical and intangible property serve many of the same purposes. Inventors register patents because they seek prestige. Writers may register their screenplays to signal insider status to other professionals. And we keep records of ownership and transactions to secure a historical record. Those nonexclusion functions, however, are often overshadowed by the role registers play in securing and recording ownership interests. By highlighting these less appreciated features of registers generally, we enrich both the general understanding of the purpose and operation of these institutions and point toward ways to design them more effectively.
Part I provides a brief overview of clowning and the legal doctrines that may apply to clowns' creative output. As we will describe, despite the availability of legal exclusivity, most clowns forego any formal legal protections. Instead, as we detail in Part II, clowns rely on a set of overlapping informal social norms to define and police the sometimes-nebulous boundary between influence and appropriation when it comes to their visual appearance, names, and performances. In Part III, we turn to the Clown Egg Register. After outlining both its history and contemporary procedures, we consider a range of explanations for this costly yet persistent practice. While the Register appears to serve some of the traditional purposes associated with property registries, those legal-centric explanations are insufficient to fully explain the Register's endurance. So we identify a number of nonexclusion functions of the Register. In Part IV, we consider what lessons the Clown Egg Register offers for the study of social norms as alternatives to formal law and for our understanding of the values served by registers.
CLOWNING AND LAW
For reasons that remain unclear to us, the existing legal academic literature is curiously silent on the question of clowns. As a result, we assume only passing familiarity with clowning. In order to contextualize our discussion of the practices and norms of clowning, this Part provides a brief history of its emergence and development. Next, it describes the structure and hierarchy of contemporary clowning. Clowns generally fall into reasonably well-defined categories based on their visual appearance and demeanor, as well as the venues in which they perform. Finally, this Part considers the application of formal legal rules to the defining elements of clown personae and performances, concluding that while various forms of exclusivity are available, on the whole clowns have neglected to pursue them.
A History of Clowning
Nearly every culture has developed a comic template we would call a clown. (32) They have many names and developed largely independently, but at their core, they are clowns--comic, irreverent, and sometimes subversive performers who rely on upsetting settled social expectations to elicit laughter, typically through physical acts. (33) French (34) and Russian (35) clowning are well known and influential. But Egyptian clowns date back to roughly 2400 B.C. (36) And a range of Asian...