Joke Theft? SNL’s Michael Che in the Cross Hairs

Well, there we go again with the joke stealing thing: another accusation, another comedy star, another lawsuit. This time Michael Che’s number is up in the plagiarism altercations of the internet age. In case you missed it, the Saturday Night Live funnyman has been accused of purloining (okay, stealing) jokes from a TikTok video performer and now both Che and his partner HBO Max have been dragged to court. And the TikToker is asking for more than just money.  

But first, here’s the story: Kelly Manno is a TikTok performer who posts videos on the said platform covering various everyday situations like taking a home tour, grabbing fast food with kids in the car, carpools by moms and more. Last year around August and September, she released two TikTok videos which she claimed garnered many hundreds of thousands of views. The videos titled the “Homegirl Hotline” involved a fictional service which allows people to request a so-called “homegirl” to help them take care of personal problems in their lives. (In one of the TikTok skits, after being called in to help an upset woman get even with a cheating boyfriend, the assisting “homegirl” threw out the bad guy’s clothing from the woman’s upstairs window, then drops a label that reads “free shit” over the clothes strewn on the lawn downstairs before proceeding to puncture the tires of the guy’s SUV truck that was packed downstairs.)  Typically, after the “homegirl” deal is struck, the customer would express their gratitude by saying “Thank You, Homegirl”.  

Now enter Michael Che and his HBO Max comedy series titled That Damn Michael Che. One of the episodes of the series contains a sketch entitled “Homegrrl.”  There, a father’s young son is attacked at a building lobby by an agitated woman who claims that the boy had stolen something from her and was hiding it in his diaper. During the attack, another woman intervenes and punches out the woman who had lunged at the kid and then apologizes to the kid’s flustered father who then replies, “Thanks, Homegrrl!”.  It is this very line uttered by this father character in Che’s sketch that Manno claims infringes her copyright in the phrase “Thank You, Homegirl Hotline” which was uttered by the characters in her own video.  So, in her lawsuit, Manno is alleging that Che has willfully infringed her copyright in the video and is seeking serious money damages plus a court order (or injunction) stopping Che and HBO from continuing to use their sketch.      

Now let’s consider what the copyright law says about all this. For starters, one cannot obtain copyright in a work unless the said work is an “original” work that has been affixed to a “tangible” medium. Obviously then, Manno’s work here, whatever one might say of its quality, is “original” in nature (assuming, of course, that she didn’t lift the stuff from somebody else). Plus, TikTok as a platform qualifies as a “tangible” medium where works being presented for copyright protection can be situated. Therefore, at first blush, Manno’s “Homegirl Hotline” skit passes the copyright test and will be recognized as a “work” in which her copyright exists.

So, now that she’s sitting pretty as a copyright holder, how about Che? Did he, in fact, infringe her copyright? Well, not if he came up with his own work entirely on his own, in which case we will be dealing with a mere coincidence (which is okay) rather than a willful appropriation, which is not allowed. And of course, if we’re talking about willful infringement, we must assume that Che indeed had “access” to Manno’s work. (For folks in Manno’s position, one of the blessings of the Internet age is that proving “access” of this kind is a cakewalk because, hey, we all suppose that anyone can access anything posted for public consumption on a platform like TikTok.)

  Setting aside the question of coincidence, could the two works each enjoy copyright protection despite their apparent similarity?  Well, yeah: one cannot copyright an idea but rather only the particular (think original) way that the person has expressed the said idea. When we’re dealing with words, as in this case, what is or can be protected, incidentally, is the very way the words have been used rather than the all-too-familiar idea of expressing gratitude to someone (whether Homegirl or anybody else) who has done the speaker a favor. Translation: Even if someone in Che’s position saw the thing on the Internet, he can still avoid the copyright problem by simply using different words to express the same good-manners idea of gratitude. (Again, remember, no one can copyright an idea.) So, in the complicated world of copyright law, just proving that the second person had “access” to the first person’s work isn’t even enough.  Between the issues of coincidence, access and similarity of the works in question, the jury in these sorts of cases is dealing with and weighing up a lot of factors, which all makes for potentially expensive litigation and an oftentimes hard-to- predict outcome. 

This case brings to mind another copyright situation from across the pond in Britain, a case that just like the Che’s case, involves a lesser-known person going after someone with a higher public profile, as well as the same issues of coincidence; access, and the use of similar ideas and expressions. Only this time the dispute is between two actual working standup comedians, and funny enough, the dispute has led not to a copyright violation suit by the complaining comedian but rather a defamation lawsuit by the comedian who allegedly stole the other guy’s joke. (Feel free to call it the “smart fridge case”, if you like.)

In the British case, both comedians are making a joke about not wanting to buy a smart fridge, out of fear that said fridge would actually bother them with messages when then they’re away from home hanging out with their friends. One comedian (Darius Davies) claimed he first made the joke on the comedy club circuit prior to the second comedian (Kae Kurd) making the same joke on national TV.  Kurd, whose time on TV with the joke seemed to have garnered him newfound celebrity status (a prestigious talent agency rep plus a national tour) did sue Davies for defamation for essentially calling him a joke thief in a viral post that aired the accusation.

Although Davies has not filed a countersuit for copyright infringement against Kurd, the circumstances that existed between them before Kurd went to court present the same old copyright issues of coincidence, access and similarity of ideas/expression that we see in Che’s case. Indeed, they’d already argued over these issues (without any resolution) prior to the matter landing in court. At the moment, the parties are reportedly taking the traditional path of trying to resolve matters out of court. Makes sense in the circumstances.

 Returning to Michael Che’s case, it seems that the British situation offers clues as to the likely path out of the dispute: an out of court settlement. For a comedy star like Che, it may not be the best use of time and money to be wrangling about possible joke theft with a lesser-known quantity like Manno. There’s probably no path to a happy win for Che nor for HBO Max. If one were to take a bet, the odds are better than even that they’ll choose to just settle this pesky matter out of court and be done with it. But we’ll see how it all ends.  

Editor’s NoteAt the moment the author is seriously working hard to finish writing a new book on a rather tight deadline. So please bear with us if upcoming posts do not appear as regularly as they should during this, hopefully, quite short period. However, in the meantime, please do dig into the many other posts contained in the archives, which are readily available for your reading pleasure. There are two “categories” of articles: “Comedy Legal” and “Other Controversies.” You can find all of them at the “Categories” box on the sidebar. Please keep reading!

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