Free Speech versus Privacy: British comedian Louise Reay sued by ex-husband

As it happens, comedians tend to have extroverted personalities and considering the nature of their jobs, that isn’t exactly surprising. Yet, they also have a private life and sometimes they actually do draw some of their comic material from the experiences of their private lives just like their other experiences. Problem is, other people in the private lives of comedians may not be so extroverted themselves and so may rather want their private business kept out of the knowledge of the public. So, as one might expect in such situations, comedians do sometimes actually get sued by aggrieved family members who feel victimized when comedians wash domestic laundry in public. The latest episode in this sort of saga comes from Britain where comedian Louise Reay and her ex-husband Thomas Reay are currently embroiled in a defamation lawsuit that has been framed as a free speech case, despite being accompanied by some menacing invasion of privacy allegations.

First, here’s what happened: In 2017, comedian Louise [Beaumont] Reay, put together a 50- minute show titled Hard Mode in which she purported to discuss issues of censorship and authoritarianism with references to China and the BBC. However, the show also contained references to personal details of her life with her ex-husband, Thomas, the plaintiff in the current defamation lawsuit. Upon learning of the contents of the show [presented at the Edinburgh Fringe Festival and in London], Thomas sent Louise a written complaint demanding that she stop talking about the said matters in the show. He subsequently filed a lawsuit against her over the contents of the show, alleging defamation, invasion of privacy and data protection, and sought £30,000 in damages plus costs and an injunction demanding that she refrain from making [publishing] further statements about him.

The plaintiff’s side stated that after clearly identifying him [the plaintiff] both verbally and in still and moving images, the defendant-comedian then proceeded to present private information about the plaintiff and his relationship with the defendant which pushed “the entirely false suggestion” that his relationship with the defendant was “an abusive one.”

Given how commonplace it is for comedians to talk about their personal lives in their work, this lawsuit is such a big deal especially in regard to how a defeat for her in this case might impact the work habits of comedians who think it permissible and safe to include personal life stuff in their material. There is an undeniable chilling effect here, whatever the extent. Perhaps perceiving the significance of this factor, the defendant-comedian Louise Reay, the laureate of the 2015 Alternative New Comedian of the Year award, has opted to invoke the camaraderie of her comedy peers by framing this case as a free speech matter of immense implication for the comedy community. Thus, she has set up a crowdfunding website (GoFundMe) for her legal defense and her comedy peers have rallied around her.

“As standup comedians I believe it’s the very definition of our job to talk about our lives and social issues, so this has become a free speech issue and free speech means everything to me,” she said on the crowdfunding site.

Curiously, though, despite her free speech stance, upon initially receiving his written protest, she did remove the offending references to her husband in subsequent presentations of the show.

(By the way, in plain language for simple folk, liability for defamation arises from the making of false statements of fact that injure the victim’s reputation in the community.)

But how will her free speech defense play out in this defamation lawsuit? Will it fly any?

Well, for starters, it is worth noting that her free speech defense to the defamation lawsuit would have fared way better in an American courtroom than in a place like Britain thanks to America’s world-famous First Amendment whose goal is to ensure that debate on matters of public interest is “robust, uninhibited and wide open.” Yet even in America, in order to enjoy such free speech protections, the offending statements must not be knowingly or recklessly false. And of course, they must relate to discussions about matters of public interest or concern public figures and officials. Since her ex-husband, the plaintiff, presumably, is a private person and the facts about his life and their failed marriage are not matters of public interest, she likely would have had trouble mounting a free speech defense over here in America if she would have been an American defendant. So, long story short, her case probably would have been decided over here in America the same way the British courts are going to decide it, that is to say, like a regular defamation case with no frills.

So, without any First Amendment-style interventions, how will this comedian’s available defenses play out in an old-style defamation court litigation?

Well, from all indications, let’s just say there is some heavy lifting to be done. To this comedian’s peril, it seems that while addressing the vexed issue of censorship in society, she rather chose to take her eyes off the ball for a bit and took an unrelated and quite irrelevant dig at her ex-husband. Yet, being a comedian in a situation such as this, her most obvious line of defense seems to be an assertion that this whole thing was simply a joke being made by a comedian. Her other defense [already foreshadowed in some of her statements] is something of a de minimis claim, namely, that we’re simply dealing with a mere two-minute portion of a 50-minute presentation. In perspective, if she can prevail on the first point about it being but a joke, there will be no need to try to rely on the second point about it being but a rather tiny portion of the entire show. Conversely, if she loses that argument, then the two-minute factor won’t help her.

However, for her to win the argument on the “joke” front, it has to be clearly shown at least that the references to her ex-husband were both intended and understood as a joke by its listeners or audience. Only problem here is, as the plaintiff’s side claims, is that he was clearly identified in both still and moving images which were then accompanied by factual statements about him and his marriage to the defendant which portrayed him as an abusive person. The plaintiff alleges that these statements of fact were false and thus defamatory. Question is, will the judge agree with the plaintiff’s version of the matter or will he instead think that the statements were just a joke and would have been understood by reasonable people who saw the images and heard the statements as just a comedian making a joke. (By the way, rare though it may be, someone can still be found liable in defamation for a joke because as the old saying goes, one is not allowed to “murder the reputation of another in jest”.)

And then, there is the invasion of privacy claim which is a straight up tort matter that stands separate and apart from the defamation claim. This concerns the right of people to be left alone in their personal spaces. And in terms of a plaintiff proving somebody’s liability, this claim seems to be less complicated than the defamation one where arguments about free speech and opinion issues could muddy the waters and create uncertainty. Not so here. In a situation such as the present case where it is alleged that, without the plaintiff’s consent, the show [Hard Mode] presented personal information about the plaintiff [Thomas] together with still and moving images of him plus other information about what he did during the marriage, there seems to be enough ground for the court to find an unlawful invasion of privacy. That is, if the allegations are in fact proven. Of course, where it is shown that somebody’s privacy has been invaded by another, the courts can always issue “injunctions” to get the offender to stop doing the things complained against.

Also, some might be wondering whether it helps her overall case that in subsequent presentations of the show, she did yank the offending portions of the show upon receiving the plaintiff’s initial complaint or protest about the matter. Well, aside from showing that she maybe realized that she was acting wrongfully, the removal of the said offending portions will probably not absolve her of liability for defamation and invasion of privacy if such liability is otherwise found to exist. More likely, in such a situation, it will be a factor in her favor when the court is assessing what damages to award to the plaintiff.

In the end, whichever way this ends for award-winning comedian Louise Reay, it will likely rank among the most serious cases anyone has yet brought against a comedian for family-related personal information contained in their comic material. Certainly, it is pretty smart of the comedy community to be paying such close attention to it. To be sure, this is a genuine concern that exists on both sides of the Atlantic.

 

(***Breaking News: A sassy new genre of comedy just arrived on the scene ; it’s called  Muckraking Comedy.   Stay current and read all about it at Paley Matters. Enjoy!  https://paleymatters.org/the-brave-new-world-of-muckraking-comedy-feeb86ec4115)

Attacked Onstage: When a Comedian Can Win But Won’t Sue

So, comedians, as we all know, set out to make people laugh when they’re at work. But the funny thing is, they sometimes also make people angry and mad as hell. In fact, so mad that sometimes some of these people actually do attack them. As in, (gasp!) attack them physically, that is. Cut to comedian Steve Brown and, well, there we go again: another day another incident onstage at a stand-up comedy show. Welcome to one of those unfunny occupational hazards of a comedian’s life. But first, here’s the story:

One Sunday evening in late January, Steve Brown was performing at a Columbia, South Carolina venue named Comedy House when an enraged audience member rushed the stage and attacked the comedian. In the videotaped confrontation that ensued, the man Marvin Toatley, described in media reports as a drunken heckler, attacked the comedian with a microphone stand as well as a chair. By the time the scuffle ended, the comedian had sustained a gash in the arm, four other people had been injured including security staff plus $400 in property damage. Toatley was arrested a few days later and charged with aggravated assault and battery plus a charge for malicious damage to property.

For his part, Brown described the incident as an “unprovoked attack” and opined that the comedy clubs should have “well equipped professional security to protect us the entertainers who bring their clubs so much money.”

So, naturally, this being America, people are wondering about where things are headed next, especially the question of who will be on the hook here if a lawsuit were to be launched? So far, though, there is no report of a lawsuit.

But if a lawsuit were to happen, what, if any, claims could there be in this pretty wild situation and against who exactly? Will it be against the comedy club, the assailant Marvin Toatley, or who? (In the interest of full disclosure, this blogger has been asked about these “what ifs” by some comedy watchers and this article is in no small part a response to their curiosity.)

Well, for starters, the most obvious person who could be successfully sued for the incident in this case is the attacker himself Marvin Toatley. Quite simply, the guy could be hit with a battery claim coupled with a demand for money damages. Under the law, when a person intentionally makes an “offensive” contact with the person of another a battery is said to have occurred. The idea of the contact in question being “offensive” is based on the fact that there is no justification for the said contact or touching. The kind of justification we’re talking about here could exist, for instance, where the person who was touched consented to the touching or where the touching itself was done under some sort of legal authority. In our case here, if the comedian were to choose to sue the man who attacked him, it is difficult to imagine any way in which the attacker will not be liable for the tort of battery, as described above. It is pretty obvious that the attack was intentional and the justification for it was zero.

Also, as long as comedian Brown still has the attacker in his sights and is laying tort claims on him, he could also tack on a claim for Intentional Infliction of Emotional Distress. This is a claim that is reserved for wrongful actions which are deemed “outrageous” and “utterly intolerable in a civilized society”. True, the bar is set higher for wrongful actions of this kind than would be the case for just an ordinary battery. Yet, for a stranger to rush the stage and so viciously attack a professional comedian doing his act is the sort of bizarre act that could well strike a jury as outrageous and utterly intolerable and therefore cause them to find the attacker liable for this tort claim.

Anyhow, suing the attacker seems to be the easy part. What if the comedian Steve Brown got more ambitious and decides to sue the comedy club Comedy House as well. Then what? Can he make anything stick? Well, not likely! As matters stand, the more tempting option here is for him to sue the comedy club for negligence in failing to prevent the assault. In so doing he would somehow be suggesting that the club knew the attacker was prone to that sort of violence and yet did nothing to forestall the incident that occurred. The problem with alleging negligence against the club here is that the plaintiff will have to show that the club knew or should have known that a member of the audience at one of the shows on its premises would rush the stage and attack a particular comedian doing his act. This is a pretty high bar for any plaintiff to clear in a negligence case. In our case here, we have an intentional action from a stranger who was not an employee of the club and who acted without prior warning.

Plus, the fact that prior to the attack, Brown allegedly picked on Toatley who was sitting in the front row as being “grumpy” would not help his claim against the club since the comedy club could not have foreseen these actions that were unfolding rather quickly in such a short span of time. Therefore, it was hardly in a position to have prevented them.

By the way, as a general rule, the law does not hold one person liable for the intentional actions of another person, except in rare circumstances such as where the offender is an employee or servant of somebody else, as in master-servant situations. So, bottom line is, a move against the comedy club for any claim sounding in negligence likely won’t fly.

But how about “premises liability”, like suing the owner of premises for injuries or other damages sustained on its property? Can Steve Brown hit up the Comedy House for money on this basis? Well, perhaps in other circumstances, yes, but not in this case. For instance, let’s suppose that Steve Brown had finished his show onstage inside the club and was thereafter mugged and injured by hoodlums while on his way to his car in the comedy club’s parking lot. In that situation, we might genuinely be looking at issues of premises liability, given that every owner of premises (or occupier of land) is required by law to take reasonably adequate steps to ensure the safety of visitors lawfully on their premises. If such a thing were to have happened, namely, that Brown was attacked as he walked to his car in the parking lot, it would be pretty difficult for the club to fight the conclusion that, as an owner of premises, it had failed in its duty of protection to its visitors. But that wasn’t the situation we have here.

So, there we have it, as far as what the picture would look like if the comedian should decide to file a lawsuit against anyone who can be sued over what happened to him onstage that fateful day. So far, as already noted above, there is no report yet of the comedian filing a lawsuit as a result of this incident. This strikes some folks as rather odd considering that America is the most litigious society in the world. Yet, for those who are especially wondering why he hasn’t at least sued the attacker yet, here’s the thing: lawsuits are expensive things and they cost money and take time.

Therefore, most reasonable people who do have a life do not lightly pursue litigation unless it makes sense to do so. This means winning against the “right” party or as they say, the guy with deep pockets. In the real world, nobody wants to go through the big pain of litigation just so they can win a case against some guy who can’t pay the damage award (the proverbial “man of straw”). Obviously, the comedian must have his reasons for opting not to sue, but if I were a betting man, I’d bet that it’s because he thinks the guy who attacked him has no money and he doesn’t want to waste his time suing someone who can’t pay. As usually happens in these sorts of situations, the comedy club is probably the party with the deeper pockets in this case but, alas, the comedian’s case against the club is rather weak.

Only time will tell what the comedian Steve Brown ultimately decides to do, but while he mulls his options, the good news is that he still has a number of years before the statute of limitation runs on his claims. If he still wants to sue, that is.

The Defeat of Matt Hoss: A Copyright Lesson for Comedians

Nowadays we live in a new era of comedy where copying a comedian’s work can seem like removing money from his pocket. Needless to say, this is the sort of situation where the aggressor can expect some pretty hard pushback. Yet, as comedian Matt Hoss (full name: Matt Hosseinzadeh) learned not that long ago, just because a comedian thinks that somebody else has crossed the line does not make it so – at least as far as the law is concerned.

Now, here’s what happened: In May 2016, the edgy comedian Matt Hoss (aka “The Bold Guy” or the “Pick-Up Artist”), filed a copyright violation case in federal court in Manhattan against Ethan and Hila Klein, the producers of the YouTube Channel H3H3 Productions. Hoss essentially alleged that the Klein duo by taking way too much of the contents of his earlier video titled “Bold Guy vs Parkour Girl” for inclusion in their latter reaction video (a 13-minute work which sought to satirize his said earlier video) had thereby committed a violation of his copyright in the video. Hoss’s lawsuit also tagged on some less significant claims against the Kleins, including defamation.

After the Klein team, a married duo, got word of the lawsuit out to their more than four million subscribers, they responded by floating a GoFundMe campaign that reportedly netted over $160, 000 for the Kleins’ legal defense of Hoss’s lawsuit. The cause celebre here? Well, it’s “fair use” concerns on YouTube.

Explaining his lawsuit Hoss claimed: “You can essentially watch my film by watching their video. That frustrates the entire point of copyright. Critiquing or commenting on a film should not, and almost always does not, use virtually the entire work.” Well, let’s just say the court didn’t see it that way; otherwise, Hoss would have had a better day in court rather than a big defeat.

Indeed, the decision of the federal court in the case turned out to be a big win for the “fair use” folks and their crowdfunding campaign: In late August, the court ruled that H3H3’s actions were protected under the “fair use” doctrine. The judge explained that a review of H3H3’s reaction video showed that it amounted to a critical commentary upon the Hoss video and that it was not a market substitute for the Hoss video, contrary to Hoss’ claim that one can watch his film by simply watching the reaction video.

To be sure, the defeat of Hoss’ lawsuit isn’t at all surprising. In a place like America where the First Amendment is a big deal and offers protections to both comedians and non-comedians alike, a doctrine like “fair use” serves as an important tool for the promotion of free expression and debate in the public square. Some critics, though, who perceive H3H3 as bullies, have frowned upon the fact that even sometimes spiteful actors like the Kleins are granted free speech protections for their offensive work. But, oh, well, this is America and the First Amendment is just doing its job in our national conversation. In this copyright context, this means that a person using somebody else’s copyrighted work doesn’t necessarily need the permission of the owner of the earlier work. Nor does the person have to say something nice about the earlier work. They can be as snarky as they want to be. As a matter of fact, such a person is protected as long as he is traveling along the lane of commentary upon or critique of the said work.

Anyhow, from the court’s decision, it is clear that Hoss fell into a common error among copyright plaintiffs regarding the exact extent of the copyright protection that their work enjoys. The problem is made worse by the fact that assessing a doctrine like “fair use” in any litigation is typically a “fact-intensive” inquiry, as the lawyers would say. It is generally a case-by-case situation, meaning that no set-formula exists beforehand for making the call in each case. So, one thing to keep in mind is that just because somebody has copied another person’s copyrighted work for inclusion in their own production does not mean that they’ve run the red light yet. Not even in a situation where the second work has copied a whole lot from the first work, as noted above. As the court made clear, the second work is allowed to use as much of the first work as is necessary to accomplish what the court called the “transformative purpose of critical commentary” of the first work.

In practical terms, determining how much is needed for such purpose depends both on the “context” of the work and the “utility” of the portion copied. In plain language, the second person is allowed to copy as much as he needs in order for the portion copied from the first work to make sense in the second work; of course, by itself the second work now represents a transformation of the first work. Incidentally, speaking of “reaction videos” in a battle between YouTube channels, it bears noting that if the second work simply copied and presented the first work to its viewers with very little or no commentary or criticism of the first work, then it’s difficult to say that it is a “transformation” of the first work.

In such a situation, where no transformation is present, the second work would be putting itself in situation where it literally becomes a substitute for the first work in the market place. In our case here, it would mean that folks looking to watch Hoss’s video might as well just watch H3H3’s video instead. This sort of situation is a no-no and goes against the very purpose of copyright protection. If that would have happened in this case, it would have resulted in a likely win for Matt Hoss. But the court said it didn’t.
As noted above, Hoss also made a few other claims that were less of a big deal in this case, including the claim of defamation which were decided against him. For instance, the defamation claim was simply tossed out because the statements he alleged as defamatory toward him were ruled as pure statements of opinion by Ethan Klein which had no basis in fact. The actual meat of his case was always the copyright claim.

In the end, the simple lesson here is that copyright protection is not intended to give the owner absolute dominion over the copyrighted work, meaning that not every case of copying amounts to a copyright violation. When the second work can be said to represent a transformation of the first work, there likely is no violation. But whether or not lawful transformation has occurred in each situation is a matter for the courts to decide on a case-by-case basis, as explained above. Yet one thing is for sure: someone who is simply lifting somebody else’s work without adding anything to it is, well, probably running the red light of copyright law.

 

Twitter: @ocarls

Fighting The Daily Stormer: When a Comedian Sues a Rogue

When a comedian sues a non-comedian for damaging his reputation, one can expect the sort of unusual scenario where ‘the usual suspects’ become the ones trying to restore sanity. So, as the hunter becomes the hunted and people wonder just how well the shoe will fit on the other foot, the recent case of Muslim comedian, lawyer and left-wing political commentator Dean Obeidallah against the controversial right-wing neo-Nazi website The Daily Stormer offers us a window into the reality of that tricky situation. But first, here’s what happened:

 This past June, Obeidallah, a SiriusXM radio host wrote a piece in The Daily Beast in which he queried why President Donald Trump wouldn’t use the phrase “white supremacist terrorism” to describe the activities of right wing extremists. According to Obeidallah, the defendant website responded by fabricating tweets that appeared to have been written by Obediallah himself and posting an article titled” Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to Declare Whites the Real Terrorists.” This was then followed by a torrent of online abuses directed at Obeidallah including even death threats. Incidentally, Obeidallah and The Daily Stormer appear to be old enemies.  Two years earlier, Obeidallah had written another piece in The Daily Beast in which he urged the GOP to disavow the growing support that then-presidential candidate Trump was receiving from right-wing extremist groups including (you guessed it!) The Daily Stormer.

In his lawsuit against The Daily Stormer and its publishers, chief among them (its public face) Andrew Anglin, Obeidallah seeks damages against the website for libel and intentional infliction of emotional distress.  

 Now, before even talking about Obeidallah’s chances of winning this defamation lawsuit, it is worth considering something else, namely, that given the sort of folks that he’s dealing with here, it increasingly looks like worrying about winning the case may well be the lesser of his problems. In fact, his biggest headache at this point is actually finding the people he is suing. Andrew Anglin and The Daily Stormer, for all their caustic advocacy of hate and extreme right-wing rhetoric, are notoriously shy when it comes to showing up to defend their position in court. And, whenever push comes to shove, finding them to serve them with court papers can often seem like looking for a tiny needle in a huge haystack.  “Good luck finding them,” one might well say to anyone in Obeidallah’s position looking to serve Anglin and his website with court papers.

This past April, for instance, the Alabama-based nonprofit legal advocacy group, the Southern Poverty Law Center (SPLC) tried to serve The Daily Stormer with court papers after suing them for intentional infliction of emotional distress and invasion of privacy for allegedly orchestrating “a troll storm” that literally sought to destroy the life Tanya Gersh, a Jewish real estate agent in Montana. (Supposedly, the Stormer’s actions were aimed at punishing Ms. Gersh for engaging with the mother of white supremacist leader Richard Spencer.) Well, let’s just say that the report card on the SPLC’s attempt to serve Anglin with court papers in his native Ohio, at one point, read like any plaintiff’s nightmare: Seven different addresses and 15 return visits yielding nothing, plus lots of undelivered certified and regular mail service. (At one point, there was even a report, albeit unsubstantiated, on CNN that said Anglin had moved to Nigeria.) Tough luck!

Long story short, Obeidallah’s opponents are not the easiest guys to find when it comes to serving court papers. Now let’s get to the law on Obeidallah’s claims against them.

First, the defamation claim involving injury to the plaintiff’s reputation is fairly easy for anyone to understand. To call anyone a “terrorist” in our post- 9/11 world is a terrible thing. What’s even worse is to say that of a Muslim person in a place like today’s America. Under these circumstances, the damage to the plaintiff’s reputation couldn’t be more self-evident. For someone in the public eye like the comedian-plaintiff in this case, whose career survival and success depends to a large extent on his public image and his acceptance by the public, the label of “terrorist” is like a dagger to the heart of his standing and reputation in the society. Of course, under the law, since truth is a defense to a defamation claim, a defendant can still defeat a defamation claim by showing that what he had said about the plaintiff is actually true. But, alas, such a defense is not available to The Daily Stormer in this case because what they said of Obeidallah here is an absolutely false and entirely made up tale with the clear purpose to ruin his reputation.

Yet, since we’re in America, the First Amendment could always come up as defense in a defamation case, for whatever it is worth. Meaning that the neo-Nazi website here, for instance, might attempt to claim that Obeidallah is a public figure and that they were simply exercising some First Amendment free speech right on a matter of public concern. Now, speaking of public figures, Obeidallah may not be a familiar person to most people on the streets of America, but he is by no means merely the sort of anonymous [private] Joe out there who rides the subways of New York City on a routine basis. To the contrary, he’s actually something of a controversial figure who takes on public causes. For instance, in the fall of 2015, he was one of the ringleaders of a group of comedians, including Negin Farsad, who won a lawsuit against the Metropolitan Transit Authority (MTA) allowing them to advertise their documentary “The Muslims Are Coming,” in the New York City subways.  In any event, public figure or not, any First Amendment defense attempted by The Daily Stormer in this case will all but flop on the simple ground that their statement against Obeidallah was “knowingly” false.

Now, how about the claim of intentional infliction of emotional distress, which, one might add, has grown into a staple of modern defamation cases. On its terms, this claim is often designed to punish defendants whose actions are judged to be so “outrageous” as to “exceed all bounds of decency” and thus to be “utterly intolerable in a civilized society.” Well, let’s just say that for all the reasons stated above with respect to the defamation claim, the clearly outrageous actions of The Daily Stormer in this case also make them liable for the intentional infliction of emotional distress.

In the end, for all the merits of his case, it’s fair to say that Obeidallah is in something of a pickle here, which is par for the course for anybody suing a rogue defendant like The Daily Stormer these days. He has overwhelming odds of winning the match if only he can get the other guy to show up. This is the kind of irony that one won’t find in most regular cases where folks tend to worry less about their opponents actually showing up for the fight.  Not to make light of the grave situation here and to give a nod to comic relief, perhaps one can say that many of Obeidallah’s comedy brethren might find in this ironic situation some good comedy material for their time onstage. But seriously, it’ll be quite interesting to see how this case ends.

 

Twitter: @Ocarls

Louis CK, Saturday Night Live & Tig Notaro: Will the Joke Thief Please Stand?

Not long ago, Saturday Night Live (SNL) stepped into yet another joke theft controversy. And, this time, to give the matter some serious color, the controversy had some big names in the mix: First, there is the brash comic Tig Notaro, the star of Amazon’s One Mississippi series. Then, caught in the crosshairs of the fuss is none other than comedy’s reigning golden boy Louis CK, who hosted SNL last April. In this latest episode of SNL’s joke theft headaches, Notaro alleged that Louis CK’s Birthday Clown sketch looked disturbingly similar to her own sketch Clown Service, produced in 2015. Notaro described the similarities between the two sketches as “extremely disappointing”. (To be clear, the term being used in the media coverage of this particular matter is “plagiarism,” which is pretty much the same as what comedians would describe as “joke theft.”)

Judging from the sentiments of many of the folks who have weighed in on this matter, the answer to the question whether a joke theft violation occurred here seems sort of like the answer in that old fable where a bunch of blind folks were asked to touch an elephant and describe what it was like; each person’s answer depended on what part of the large animal they had touched. Well, in the present case, we seem to have a scenario where people are deciding there is joke theft or not depending on whether they view the matter through the perspective of “stand-up” comedy or “sketch” comedy. And there is a good deal of confusion in the mix, with different perspectives leading people to either support Louis CK and SNL or Tig Notaro.

But which side is right? Well, for starters, the reality that bears explaining in this debate is that stand-up and sketch are two different genres in comedy and therefore that what may be a violation in one genre may not necessarily be so in the other. What is even more important in this matter, however, is to get everyone on the same page about the exact situation they’re dealing with because joke theft is a quite rancorous subject in comedy and so to tolerate the notion that what people see depends on where they stand would only be a disservice to comedy. So, let’s proceed by clarifying some basic things.

First, the Stand-up format. A “joke” in this genre is a two-sided deal: you have the “premises” which is the concept or idea around which one builds the story or narrative; and then you have the “punch line” which one can think of as the end game or the goal line of the shtick. Among folks in the comedy community, the call on joke theft can be quick and brutal: the first person who comes up with the premises is the owner of the joke; the person who repeats the said premises afterward is the thief. Of course, people can always fight over whether or not the premises are indeed similar to one another. (Under Copyright Law, though, the premises aren’t that big a deal, meaning that as long as the second person does not use the exact same words that the first person had used, he or she would be standing pretty under the law. Not surprisingly, comedians are often disappointed to learn of this state of affairs.)

Anyhow, applying the stand-up logic to our situation here, one could say that since the premises of both sketches are about depressed people hiring the services of a clown to lift their moods, therefore Louis CK and SNL’s Birthday Clown joke was stolen from Tig Notaro’s Clown Service. This is one perspective of the matter, namely, that both SNL and Louis CK did indeed engage in joke theft.

However, that perspective itself would be wrong because, in our case here, we are actually dealing not with stand-up shticks but rather with sketches which are a different animal altogether and so would require a different treatment.

Now, let’s examine the Sketch format. Here, if we consider that, compared to a stand-up shtick, a sketch is a vastly more extensive comedy production which often contains a cast of characters who can take the trajectory of the story or experience in any number of unpredictable directions, then it is logical to suppose that the “premises” portion in a sketch probably won’t (and shouldn’t) be as significant as it would have been in a stand-up shtick, given that the premises and the punch line in stand-up often have a closer relationship, in terms of both duration and narrative possibilities. Besides, it is important to keep in mind here that the [intellectual] “property” which the society seeks to protect with its anti-plagiarism laws, for instance, really is the stamp of creativity that someone has attached to the particular concept or idea in question. To appropriate that creativity without the owner’s authorization is the mischief that the law prohibits. Logically, therefore, merely using the same idea, without more, isn’t a problem.
Typically, in a sketch controversy, we’re dealing with the degree of similarity between the elements of both sketches. Generally, the more substantial the similarity between the two, the riskier it all gets for the person trying to fend off the accusation of joke theft.

In the present case, it is true that the premises for both sketches are similar, but that appears to be the full extent of it − the similarities just don’t go far enough to establish a case of theft between both sketches. Notice that the other parts of the equation are missing. For instance, both what happens during the time the clown was in the house as well as how the interaction between the host and the clown ends are different in the two sketches.

So, in the interest of putting matters in their proper perspective and steering clear of unnecessary confusion, this is really how the present joke theft dispute ought to have been judged in the first place because, as already noted, we’re dealing with sketch rather than stand-up.

Yet, while there are sufficient grounds to clear SNL of wrongdoing in the present controversy, it is worth noting that SNL hasn’t exactly been a model player in the sketch wars of the recent period. Indeed, for those wishing to tar the marquee show with the brush of joke theft, SNL’s actions in some of the earlier controversies couldn’t have given them better ammunition. In 2014, for instance, it was called out for the striking similarity between its own Tina Turner skit and that of the Los Angeles comedy troupe The Groundlings. Then, just a year later [in 2015], SNL had yet another joke theft accusation thrown its way over a skit involving the drawing of Prophet Muhammad. This time, SNL was alleged to have lifted the skit from the Canadian TV show This Hour Has 22 Minutes (a.k.a. 22 Minutes).

In the end, as far as joke theft is concerned, it is obviously difficult to solve a problem that one cannot even define clearly. So, perhaps the real benefit of this particular case, given its high profile (think SNL, and boldface names Louis CK and Tig Notaro), is the ‘teachable moment’ it represents concerning the critical need for conceptual clarity in judging these situations. Going forward, if the proper lessons are learned from the confusion that has attended this case, it will mean that people in the industry will be able to put future joke theft disputes in their proper perspective. That way, as we continue to search for solutions to the divisive issue of joke theft in the comedy industry, much unnecessary confusion will be eliminated and everyone will be on the same page as we judge each new case. Needless to say, joke thieves in our midst deserve no protection at all; yet it is important that we as a community are able to at least pin the rap on them in a fairly unified voice.

 

**@ocarls
**For more information on joke theft, read Chapter Three of the book “Comedy Under Attack: The Golden Age & the Headwinds,” (2013)

Suing JOHN OLIVER For Defamation: A Good Use Of Time?

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls

Spinal Tap vs. Vivendi SA : Crusading for Artists’ Rights or Re-Playing a Familiar Old Script?

Spinal_Tap_photoThe practice of “bizarre” accounting by Hollywood studios and the corresponding resentment of this perceived injustice by the creative artist community are nothing new. And from all indications, the passage of time has done little to ease the tension and confrontation between the two sides, as is demonstrated by the latest David and Goliath-like confrontation involving some artists and yet another Hollywood studio. In its June edition, GQ magazine did something rather interesting with comedy: it featured in its self –styled Comedy Issue a report on the rather surprising lawsuit filed against French company Vivendi SA by the quartet behind the seminal 1984 comedy movie This is Spinal Tap.

At issue here (as usual) is the divvying up of the proceeds accumulated by the movie over the years. Vivendi claims the film has brought in revenues of only $5million over the 30-plus years since it was released. To the contrary, the Spinal Tap plaintiffs (Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner) claim that the Hollywood studio is vastly underreporting or lowballing the actual figures. In fact, the plaintiffs are claiming to be entitled to a whopping $400 million dollars in the lawsuit that they filed last October against the studio in which they alleged fraud, breach of contract and abuse of power. In addition, the plaintiffs made the obligatory demand for an accounting from Vivendi.

Incidentally, as indicated above, a lawsuit by aggrieved artists arising out of a high grossing movie, surprisingly reported by the studio as a net loss, is an all too familiar scenario in Hollywood. For instance, the Return of the Jedi movie from 1983 was reported as a loss by the studio despite grossing well over $500 million worldwide even though it cost just around $43 million dollars to produce. Same bizarre accounting formula was employed with the Lord of the Rings trilogy; Coming to America and many other successful movies in order to portray their revenue status as net losses. Only in Hollywood!

In perspective, therefore, this case is a pretty big deal for artists’ rights, since a victory here could create a whole new paradigm in studio-artists relations, especially in how box-office and other movie-related revenues are divvyed up between the two sides. Hence, Shearer, one of the present plaintiffs, boldly declared in a Rolling Stone magazine op-ed in April that his team is on a “mission for fairness” and that their desire is to “highlight the long standing and improper accounting practices in the music and film industries…an opaque world of film financing, revenue accretion and minimal profit share.”

Of course, the artists are not the only ones with a dog in this fight. Perhaps Vivendi (read Big Hollywood), considering its stature and modus operandi, may well deem itself to have the bigger dog in this fight. Certainly, a defeat in this litigation will likely force Vivendi to involuntarily change its business culture and, who knows, it could even cause other aggrieved parties from its past business dealings to seek a present redress of past wrongs. This is the proverbial slippery slope nightmare that anyone in Vivendi’s position would rather avoid. Thus, for prudential reasons, the studio would rather continue keeping the door closed on these matters, by either clearly prevailing in this lawsuit or at least appearing not to have lost.

So, what does the future hold for this case? Well, for starters, the accounting issues will be the heart of the case. By comparison, the other claims are easier for the plaintiffs to navigate under black letter law: for breach of contract, for example, they need only show that they made a valid contract with the studio and that while they did their own part, the studio reneged on its own part. Concerning the fraud claim, they need to show an intent to deceive or actual deception on the part of the studio. For abuse of power, well, if it actually occurred, then that shouldn’t be hard for the plaintiffs to establish, given the unequal strength and bargaining power between the two sides in the movie business. Here, any acts of overreach by the studio could be a significant consideration in the proof department.

Thus, in a manner of speaking, the accounting issue is really where the rubber meets the road in this case because at the end of the day, this is a case about money. A lot of money, indeed. Aside from ticket sales, there are other revenue streams like VHS/DVD sales, merchandising, music sales, concert tickets and more. And the vastly differing claims of both sides further complicate the matter: for example, while the Spinal Tap plaintiffs claim $400 million dollars as owing to them, Vivendi counters that the entire revenues earned so far is just $5million and that ‘revenues from other sources and territories have been similarly modest.” (And oh, as long as we’re talking about Vivendi’s pushback against the plaintiffs, it is worth mentioning the arguably cynical suggestion of some that Vivendi could spring a copyright defense at the plaintiffs. Well, suffice it to say that that’d be an uphill battle for the studio since this case is fundamentally a breach of contract matter. Besides, speaking of copyrights, the plaintiffs themselves, reportedly, already had an actual demo of the movie prior to their contacts with the studios. )

So, anyway, the puny payments made to the plaintiffs so far is clearly indicative of Vivendi’s perspective to the matter: For instance, despite the wild popularity of the movie (which late-night show host, comedian Stephen Colbert, echoing a widespread sentiment, recently described as something that “singlehandedly created a genre….and an iconic piece of comedy”), the four artists together have reportedly received $81 as a share of merchandising revenues and another $98 for music sales revenues over a 20-year period roughly spanning 1984 -2006. This laughable figure is a very far cry from the 40 per cent of net receipts from the movie’s revenues and 50 per cent of gross receipts from the music sales revenues that the plaintiffs are claiming. The sheer gulf between these conflicting claims is breathtaking and untangling them in a litigation context will be an eye-glazing ordeal.

In any event, as the court enters upon the arduous task of plumbing the numbers on the accounting issues (naturally with the assistance of the accounting and other experts), it is foreseeable that some heads of expenditure claimed by the studio may either be allowed in part or disallowed as a whole, if found unreasonable or otherwise to be abusive of its dominant position to the detriment of the artists. Usually a higher burden is placed on the studio in these circumstances since it is deemed to be the stronger party because of its position. In other words, the balance of knowledge and information power on the accounting issue weighs heavily in the studio’s favor since it controls the movie’s production budget including sales and expense figures, which are matters the plaintiffs would ordinarily not be in a position to control. Plus, the studio’s control over these matters would have required it to exercise discretion and business judgment over them in a manner that would have a direct bearing on how much profit is ultimately made by the movie. And so on. All the while in this process, the guiding principle for the court will be the studio’s obligation to “deal fairly” with the artists.

Though their burden may be lighter, the plaintiffs’ side has some difficult work to do as well; for instance, they may have to justify their not-too-obvious formula for deciding that net receipts are OK for the movie revenues whereas gross receipts apply to the music revenues. Plus there will be other questions and possibilities that will inevitably arise in the push and pull of litigation.

In the end, this case like others before it will be decided mostly by practical considerations, regardless of the posturing on both sides and the bold statements of principles. One is the desire of the studios not to wash their dirty linen in the public or, worse, to actually lose the case. The other is the concern of the little guys (the artists) not to spend themselves into the poor house while going up against the hardball tactics of deep-pocketed studios in complicated and accounting-heavy disputes with an uncertain outcome. Incidentally, these rival motivations do reduce the odds of an actual trial of this case on the merits, and thus favor the settlement of the case pre-trial. Yet, for the broader artist community, it would seem that an actual “judgment” with a declaration of the rights and obligations of both sides will be a big help in their future collaboration with the studios. Needless to say, a “settlement” of the case will be considered by many as a familiar ending to an old script as opposed to the dramatic step of actually getting a judgment following a trial on the merits. Anyhow, only time will tell if we’re watching the re-play of an old script or witnessing the start of a brave new world in artists’ rights and Hollywood accounting.

Going to Jail for a Joke: A Contemporary American Look at German Comedy

jan_bohmernann_photo6The saying that America is a ‘free country’ is something that Americans in the comedy business in contemporary times would probably appreciate better than most people. But in other places, however, thanks to their laws, comedians actually live in a different world and in some cases can actually go to jail for the content of their comedy. Perhaps surprisingly, Germany is one of those places.

Take the case of comedian Jan Bohmermann. In March 2016, Bohmermann, a German insult comedian and host of the satirical talk show Neo Magazin Royale took an offensive shot at Turkish leader Recep Tayyip Erdogan. Sitting in front of a Turkish flag and a portrait of Erdogan, Bohmermann read a poem in which he suggested, among other things, that the Turkish leader had sex with goats and watched child porn. Ouch! Well, perhaps this was great comedy for his audience but the offensive gag did in fact run up against an actual law in Germany which forbids anyone from insulting a foreign leader. The punishment? Up to three years jail or a fine.

Not surprisingly, the reaction of the Turkish government was swift and harsh. In demanding that Bohmermann be immediately punished for his action, the Turkish government denounced the satirical poem as a “serious crime against humanity…that crossed all lines of indecency” as well as an insult to all Turkish people’s honor. For her part, German chancellor Angela Merkel (under pressure to preserve her country’s refugee deal and overall fragile relations with Turkey) also condemned the poem as “deliberately offending,” and noted that Germany’s freedom of the media was not an unlimited right. Sensing that it had stepped into it, Germany’s ZDF, the public broadcaster that carries the comedian’s talk show, yanked the video from its website as well as on YouTube.

In contemporary America, it is taken for granted that something like the Bohmermann situation cannot happen here and indeed that is true. Thanks to the First Amendment’s prescription for “uninhibited, robust and wide-open” debate on matters of public concern, it is difficult to imagine any situation where a contemporary American comedian can be arrested and charged for the content of their comedy. Usually, if it should happen that some foreign leader doesn’t like a particular joke made by some American comedian, well, tough luck! No wonder it is said that the First Amendment is the comedian’s best friend and that America is the freest place on earth where a person can do comedy, gadflies like Bohmermann included.

Yet, in perspective, the American cultural landscape wasn’t always such a danger-free zone for any comedian who would push the envelope and thereby ruffle neatly arranged feathers or step on sensitive toes. The legendary American comedian Lenny Bruce is remembered as much for his heroic advocacy of free speech as for the tragic price he paid for doing so. Bruce was the classic iconoclast who never hesitated to attack the conventions of the American society of his time in a bid to expose what he considered as their hypocrisy, whether the conventions concerned religion, sexuality, race, the flag, and more. Consequently, between 1961 and 1964, he was arrested for obscenity in places like San Francisco, Los Angeles, Chicago and New York. The encounter in New York ended in an actual criminal conviction. (By the time he died in August 1966 of a drug overdose, his conviction was yet to be overturned on appeal. He was finally pardoned in 2003 by the governor of New York.) Today, thanks to Lenny Bruce and his leadership in the free speech battles of his era, no American comedian since then has been charged with a crime for the content of their comedy.

Speaking of Bohmermann, it happened that this past fall, the German authorities who had been weighing an indictment against him, opted not to do so, citing lack of evidence. For what it is worth, they claimed that since Bohmermann’s crude poem was simply an example of what would constitute overstepping the boundaries of freedom of opinion rather than him actually expressing his own views about Erdogan, he therefore didn’t violate the law after all. In other words, whatever Bohmermann was doing with his poem was OK as long as he had not expressed his own personal opinion about Erdogan. Now, for anyone who really cares about free expression, the trouble with this kind of reasoning is that Bohmermann was saved from going to jail precisely because he did not in fact (allegedly) express his own personal views about the subject he was dealing with. Translation: as German law sees it, not saying what is on one’s mind is actually the way to avoid trouble and jail. Really? Well, let’s just say that Americans, whether they are comedians or not, simply do not see freedom of expression in this way.

The other intriguing fact here is how even Bohmermann himself perhaps seems not to quite grasp the deeper implication of the prosecutor’s decision. To be sure, he was right (as a free speech advocate) in railing against the authorities for launching the investigation at all as well as for stating that “if a joke triggers a state crisis, it is not the problem of the joke, but of the state.” Only problem is, Bohmermann would have to be living in a place like America where that kind of protection exists as a fact of life for comedians courtesy of the First Amendment. Given the way things actually work in Germany where he lives, it is obvious that as long as this particular law remains unchanged, a joke which triggers a state crisis could indeed land a comedian in jail if that joke happens to be his personal opinion on the subject. Especially when such a joke rubs prickly foreign leaders like Erdogan the wrong way. Not a happy picture!

Still, it isn’t all fun and games in American comedy today and indeed may not be so any time soon. Although nothing quite compares to going to jail for doing a comedy act, as it was in the Lenny Bruce era, it remains true that the current culture of political correctness does present quite a headwind for the advance of American comedy. Where a comedian in the 1960s would have worried about a cop in the audience arresting him for, say, obscenity, today’s comedians rather worry about their act offending the so-called PC police on social media and other forums in the public square. Incidentally, the growing clout of the PC police has caused some famed contemporary comedians like Jerry Seinfeld and Chris Rock to opt to skip doing shows on college campuses where PC seems now to be almost a religion. However, to America’s advantage in the American-German match-up, we’re really talking about the impact of an actual penal law versus a mere social phenomenon that comedians, admittedly, find unpleasant. A night and day difference, it seems. Besides, it’s not as though German comedians themselves also don’t have to worry about PC, just like the Americans. They actually do! Not least because Germany for all its free speech deficiencies is still (get this!) another western society and an advanced democracy that exists in the 21st century.

In the end, the Bohmermann situation in Germany is something that really ought to be a big deal whenever an American comedian counts his or her blessings. For although the impact of PC is something like a rain on the parade, it is still safe to say that compared to other places, including similar western societies like Germany, doing comedy in contemporary America is an experience like no other. As they say, it’s a free country, live in it! And bring the comedy with you!

When Comedy Met Hypnosis in Court

dougT-show_photoAs life goes, the chance of witnessing something weird at a show goes with the territory in comedy. And when weird things do happen, it’s fair to say that an audience member taking matters to court may well find himself in plenty new territory when it comes to pulling out a win, whether they’re suing the comedian, the comedy club or anyone else in comedy land for that matter. This may be especially true if they are suing the comedy club for something that the comedian has done onstage. But first, here is the story:

In March 2014, comedian and hypnotist Doug Thompson was performing his signature DougT Hypnosis Show at the Funny Bone Comedy Club in Omaha, Nebraska, when audience member William Bendorf joined the group onstage for a comedy hypnosis session. (The hypnosis sessions usually consist of audience members volunteering to be hypnotized onstage, with the comedian causing them to believe and react as though various imaginary scenarios are in fact real. In one situation, the comedian got the participants to believe that an innocuous waist belt was in fact a dangerous snake, causing them to scamper to safety in various directions, some climbing over chairs in their bid to flee the stage.) At the end of the hypnosis session on this particular date, the comedian asked the participants to exit the stage and return to their seats in the audience via the stairs. Instead, Bendorf, ignoring the stairs, made straight for his seat in the audience and in the process plunged off the stage and suddenly hit the floor and suffered a leg fracture that required surgery. Bendorf claimed he was still in a trance at the time he fell off the stage, reported by some accounts to be roughly three foot high. “He was in that zone – that sort-of unconscious state. He didn’t snap out of it until he crashed to the ground… it was definitely a rude awakening,” said his lawyer, Richard Shicker. Well, this past December, Bendorf sued not the comedian but the comedy club itself, seeking damages for his injuries.

Speaking of filing a lawsuit over his injuries, perhaps the first question is why Bendorf chose not to sue the comedian at all. After all, it was his interaction with Thompson that caused the tragic fall to happen. The obvious claim in any suit against Thompson would have been “negligence,” meaning essentially that, given the circumstances of the case, a reasonable person in the comedian’s [Thompson] position should have been able to foresee that commanding someone who was still in a trance following a hypnosis to exit the stage in that condition was likely to result in the sort of fall that caused Bendorf’s serious injuries. In such a lawsuit, it would then have been up to comedian Thompson to make whatever defenses he might have and indeed there are a number of possible defenses open to him in such a lawsuit. But, of course, none of that stuff arises here because Bendorf simply opted not to sue the comedian.

And, by the way, all this doesn’t mean that Bendorf’s decision not to sue the comedian was a silly choice. Not necessarily, it turns out. After all, when it comes right down to it, a lawsuit of this sort is, let’s face it, an attempt to get money for one’s injuries or damages. That being said, if someone who has been or claims to have been injured can find some legal ground upon which to sue someone else who perhaps has more financial resources, it may actually be a smart idea to simply reach over and sue the deep pocket right away. (Incidentally, these kinds of calculations are fairly common in personal injury lawsuits such as this one. And who knows, perhaps Bendorf’s side might have made a different calculation about who to sue if Thompson were instead a rather famed millionaire comedian with tremendous resources.)

So anyhow, now that he has sued just the comedy club, then what? Can he win against the comedy club?  Well, again, just as in the situation with suing the comedian, if he’d decided to do so, the obvious claim here would be a “negligence” claim against the defendant Funny Bone Comedy Club since nothing was done intentionally by anyone. To cause the injury. The idea behind making a claim of this sort is that somehow the comedy club had control over the actions of the comedian and so was in a position to have prevented what happened to the plaintiff Bendorf.  We are talking here about something along the lines of an employer- employee relationship (or the old school master-servant relationship). In each of these situations, the person in control of the situation, say, the employer or the master, defines the scope of the work as well as how the work itself is to be done. So, it is easy to see how an injured person could go after the employer or the master for the particular misconduct of his employee or servant that allegedly resulted in the injuries. The point here being that the employer was negligent either in the way he hired the employee (“negligent hiring”) or in the way he supervised the work of the said employee (“negligent supervision”).

Fair enough! Yet this is precisely where the problem arises in many of these cases. In our case here, for example, can we say that a comedian performing at a comedy club is an employee of the comedy club and that the comedy club is in control of the way and manner the comedian performs his gig? Obviously we can say that much for a bar tender at a comedy club, but a performing comedian? Well, not so much.

To the contrary, a comedian performing at a comedy club is more like an “independent contractor” when talk turns to his or her relationship with the club. Simply put, an “independent contractor,” as the name suggests, is some outside guy who comes in to perform a particular task under a contract and who chooses the way and manner of getting his task done. Needless to say, someone in that kind of situation acts as his or her own boss and does not work as an employee of the other person who contracted him or her to do the job. Long story short, the fact that comedian Thompson is something of an “independent contractor” rather than an “employee” of Funny Bone makes this a pretty hard case for Bendorf to win.   Needless to say, speaking of an easier case for Bendorf to win against the club, it’s fair to say that if a light bulb, for instance, would have fallen on him while he was in the comedy club taking in a show that day, it’d be a different ball game altogether when it comes to suing the club.

In the end, Bendorf’s present case against Funny Bone looks like a tough uphill climb. And the sheer scale of this tough slog isn’t lost on his lawyer who reportedly admitted that he’d never encountered this kind of lawsuit in his 41 years working as an attorney. No kidding! Well, it turns out that his lawyer’s remark is true in more ways than one, including the fact that he has better odds of winning against the person who has not been sued (the comedian Thompson) than the  person who has indeed been sued (the comedy club).

 

Accusing Conan O’Brien: Two Joke Writers Walk Into a Courtroom

conan_o'brien_photo2Accusing people of joke stealing has become such an old problem in comedy that it hardly raises eyebrows anymore. Except maybe when somebody is actually accusing an industry heavyweight like Conan O’Brien of being, ahem, a joke thief. But this one case seems more interesting than most because of the rather contemporary feel to it all: the alleged joke heist took place on Twitter, the emerging “it” forum for pushing jokes in our social media age. So, behold an old problem invading a new space even though said problem is still an unresolved menace in all the old places it had come from. But first here’s the story:

This past July, a comedy writer in the San Diego area named Robert Alex Kaseberg filed a copyright violation lawsuit in federal court in California against Conan O’Brien and all those associated with his show, including TBS, Time Warner, Inc., and his writing staff. Kaseberg alleged that four of his jokes that he posted on his personal blog and on Twitter later appeared on O’Brien’s monologue during his TBS late-night show Conan without any attribution to him or compensation to him. . The four jokes at issue ranged from gags about Delta Airlines and Tom Brady to the Washington Monument and Bruce Jenner.

Here’s a sample of some of the jokes allegedly stolen by O’Brien:

Kaseberg: “A Delta flight this week took off from Cleveland to New York with just two passengers and they fought over control of the armrest the entire flight.”

O’Brien: “On Monday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest.”

Kaseberg:  “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”

O’Brien: “Surveyors announced that the Washington Monument is ten inches shorter than what’s been recorded. Of course, the monument is blaming the shrinkage on the cold weather.”

Anyhow, Kaseberg seeks hundreds of thousands of dollars in damages.

In the scheme of things, this case seems to have a bit more significance than many might think at first blush. For starters, it shows that the old worries about joke stealing in comedy won’t be going away anytime soon; indeed the problem has now migrated to the social media arena, as it tracks the movements of the modern comedian and the newfound location of comedy audiences today. Unlike comedy clubs, Twitter is more like an open access forum, where things like a cover charge, drink minimums or other similar restrictions do not exist. The other angle to this story presents something of a David and Goliath scenario: like, when a lesser known comedian is claiming the same joke as a nationally known late-night comedian with the large microphone of national TV, all the advantages seem to run in one direction so that the odds of the lesser-known guy (the little guy) winning that battle is usually pretty steep – and punishing. Assuming, of course, that the person who’s being accused actually stole the joke from the other.

But anyhow, aside from who has a bigger microphone between the two, when we consider just the law, can the little guy in this case actually win? Well, let’s see:

For starters, it is obvious from the present lawsuit that we’re dealing here with copyright law. And although Twitter is a new medium, the idea of violating someone else’s copyright − either in a joke or in some other protected thing like a movie or a book − is still the same. In very simple terms, for a piece of work to receive copyright protection under the law, it is required to be both “original” as well as be fixed in a “tangible medium of expression”.  As the name implies, an “original” idea is something that the person claiming the copyright protection basically came up with on their own; in other words, something not copied from somebody else, so to speak. Well, there are some rules, perhaps many rules around the whole notion of “originality” in copyright law. For instance, certain things or ideas are just not of the kind that can be protected by copyright and so no one can be granted a copyright on them. The common expression “Happy Birthday!” for instance, probably falls into the class of expressions for which no one can be granted a copyright. Again, just because two people have expressed their ideas in the same exact way doesn’t necessarily mean that a copyright has been breached. In such a situation, it must also be shown that the person who is alleged to have violated the claimant’s copyright actually had access to the said copyrighted material. Otherwise, the alleged similarity between the two works could be chalked up to mere coincidence. Yeah, a showing of coincidence could actually save the day for the person being accused of copyright violation.

To return to the O’Brien situation here, two things look like they are clear: first, the jokes being claimed by Kaseberg seem to be original enough as to qualify for copyright protection, assuming, of course, that he has properly registered those particular jokes at the Copyright Office; second, the jokes involved here were affixed to a tangible medium, namely, Twitter. Plus, it is also true that Kaseberg published the said jokes on Twitter before O’Brien used them in his monologues on his show. (The Delta flight joke, for instance, appeared on Kaseberg’s Twitter page earlier in the day on January 14 before O’Brien made his own joke later that same day in his late-night monologue.)

Yet, that’s not the end of the matter. Among other things, even though Twitter is an open forum where anybody can have access to, Kaseberg will still have to show that O’Brien actually lifted the jokes from his Twitter page. Interestingly, O’Brien’s people have already rejected the suggestion that they got the joke from Kaseberg’s sources. In a reported conversation between Kaseberg and Conan’s head writer Mike Sweeney (published on Kaseberg’s blog), Sweeney did “angrily and loudly” deny that the jokes came from Kaseberg and was “furious” and “incensed” at the suggestion that his writers would have anything to do with the “pathetic blog of a no- name failure” like Kaseberg. Despite the striking similarity between the O’Brien and Kaseberg jokes, the obvious implication of the pretty hard pushback by O’Brien’s side is the assertion that his people [the writers on his show] came up with the jokes by themselves.  Well, unless Kaseberg has some kind of smoking gun of the alleged heist, he doesn’t seem to have a pathway to victory here. Tough stuff! Plus, it doesn’t help him too much that only the Delta flight joke comes up on a search of his blog or Twitter record from that period; the other three do not.

At this point, it is not clear how long this litigation will drag on and for that matter how well Kaseberg’s claims will hold up in the end. If one were to take a bet on the outcome of the case, it would seem like a better bet to say that the case will settle somehow and not go the distance. Though Team O’Brien might well decide, standing on principle, to fight this whole thing to the bitter end, the odds of a settlement of this matter looks somewhat decent. At this point, for O’Brien’s side, the bigger pain isn’t so much the merits of Kaseberg’s lawsuit as it is the optics of it all.   Considering the striking similarity between their respective jokes and the showbiz reality that some folks who don’t much like O’Brien just might be tempted to believe the worst of him in this situation, O’Brien’s side might find the idea of a settlement not to be a bad one after all. A successful show like Conan would likely prefer to avoid the unnecessary distraction and embarrassment of this kind of pesky argument with a guy like Kaseberg. And the other good news here is that Kaseberg himself claims to be a fan of the Conan show and has already requested an opportunity to start contributing to the show.

In the end, it is not that hard to observe that when it comes to protecting jokes in comedy, not much help is available under the copyright law. By comparison to what is done for movies and music, the protection afforded to comedy jokes is rather quite weak. By the way, as matters stand in comedy at this time, if somebody in O’Brien’s position is in the mood to steal jokes and is worried about copyright lawsuits from folks like Kaseberg, all they have to do is to simply use different words to say the same joke and (get this!) they’d be home free. With a copyright scenario like that, it just seems that the notion of protecting jokes in the comedy world at the moment is perhaps nothing less than a big joke in itself.