Promoting Comedy in the Public Forum: Learning the Tricky Ropes

As democracies go, America is a haven for the practice of comedy thanks to the First Amendment which protects the right of free speech. And, in this area, public forums are very important, especially those venues provided by the government, which are often the venues with the largest audiences for many a speaker. Yet, access to those venues is neither as free nor as guaranteed by law as the right to free speech itself. Indeed, often times people erroneously assume that easy access to a public forum is something of a matter of course. Wrong

On closer examination, a lot of folks, comedians included, have been surprised to find that there are quite a bit of rules or regulations (principles, if you will) that govern someone’s right of access to speak at a public forum.

By the way, comedians might be interested to note here that “speech” in this context includes not just things that are said at an actual show but also things that are written or said in the process of advertising a show or event, say, on billboards or posters.

As a general rule, what one can say on a particular public forum depends on what sort of forum the place is, namely, whether it is a traditional public forum or a “designated” or limited public forum. With traditional public forums, such as public parks and street corners, life is easy and you can think of those places as free speech highways where all manner of speech is allowed, both political and ideological and non-political speech, which includes commercial speech like advertising and the like. In these forums, the government cannot restrict or deny or speech based on the “content” of that speech, meaning, for instance, that it cannot decide to allow commercial speech but ban religious speech. Nope!

In order for the government to do so, it must show not only that it had a “compelling” interest or reason restricting or denying speech but also that it had no other means available to it to achieve the same result in a manner that would have had less impact on the speech in question. Lawyers call this the “strict scrutiny” rule, the whole point of which is to make it very difficult for the government to mess around with any of the “protected” rights under the constitution.

(Note that although the government isn’t allowed to ban or restrict any constitutionally “protected” speech it is nevertheless allowed to regulate the time, place and manner of exercising the right.)

Then there are the “designated” or limited public forums, such as subways and buses, which are places where the government can choose what sort of speech to allow and which ones to prohibit. Government can choose, for instance, to ban political speech while allowing commercial speech. But as long as it has opted to allow commercial speech, it cannot then start to discriminate between commercial speeches on the basis of “viewpoint.”  In other words, the government’s actions in restricting or denying speech in such situations must be “viewpoint- neutral and reasonable,” meaning that it cannot, for example, treat similar speeches differently.

For comedians and other entertainers who frequently need to publicize their shows in the public forum, the limited public forums are the ones that appear to raise the trickiest questions.

In the ordinary case, an ad by, say, a computer store on a city bus is a straightforward business promotion and often goes off without a hitch. However, problems might arise where what is said in an ad, for instance, can be perceived as “political” in nature and/ or controversial and thus banned. And this is where comedians can sometimes run into unexpected difficulties with exercising their free speech in such public forums.

Perhaps one of the more interesting cases here is the one involving some Muslim comedians who in September 2014 wanted to advertise their documentary film The Muslims Are Coming through the use of posters in the New York City subway system operated by the Metropolitan Transit Authority (MTA). The said movie, produced one year earlier, follows some Muslim-American comedians on their tour of American towns and cities and their interactions with the audiences.

 The various poster ads contained the link to the movie’s website as well as various comic statements, including things like “Muslims Hate Terrorists”; “They also hate”: ‘People who tell you they went to an Ivy League School within 10 seconds of meeting them;’ ‘When the deli guy doesn’t put enough schmear on the bagel;’ ‘Getting out that last bit of toothpaste from the tube.’ The ads also contained statements like “Those Terrorists are all Muslim [the word “Muslim” is crossed out] Nutjobs,” “Grown up Muslims can do more pushups than baby Muslims” and so on.  The six ads were scheduled to run over a one -month period in 144 ads across the city’s subways. But the MTA rejected the proposed ads on the grounds that the ads violated its newly adopted policy which allowed commercial speech while barring the use of its facilities for “political” speech.

However, the comedians Dean Obeidallah and Negin Farsad plus the ad’s producer Vaguely Qualified Productions sued the MTA and won big in federal court. In siding with the comedians, the court ruled instead that the ads were essentially “commercial” speech by a for-profit entity and that it was remained so even if the advertiser might have been trying to capitalize on the political controversy around Islamophobia to promote its business interest. (At the time in question, the right-wing activist Pamela Geller’s group the American Freedom Defense Initiative [AFDI] was reportedly running an anti-Muslim ad in the said subways, depicting a man in a headscarf plus the incendiary words “Killing Jews is Worship that Draws Us Close to Allah.” The Muslim comedians claimed they were simply trying to counter the possible cultural impact of that campaign.)

Furthermore, the court said that even if the ads could be considered as “political” speech, the MTA had engaged in “viewpoint discrimination” given that it had already allowed other ads on its platform that were arguably even more political in nature than the comedians’ ads in this case, such as cable TV station CNN’s ad about the GOP presidential debate which contained photos and quotes by the candidates.  In other words, the court found that the MTA, which offered its subways and buses as a limited public forum for speech, was treating similar things differently in violation of the principle of “viewpoint-neutrality.”

So, what are some of the lessons here? Well, for starters, the less political speech that are contained in ads for a show, the easier life will be for the comedian. Obviously, things can get tricky when the ads straddle the political and the commercial lanes of traffic: in such situations, the authorities might be tempted to use the excuse of stopping political speech to perhaps ban the ads of a rather controversial comedian they might not like. (This is arguably what the MTA was trying to do in the Muslim comedians’ case, as the court implied.)  The other thing is that when it comes to ads and free speech, life is easiest in classic public forums like public parks and streets where the test is “strict scrutiny”; things get a little hard in limited public forums like subways and buses; and even harder in nonpublic forums like public schools, public hospitals or even jail houses. With all that in mind, the good news, though, is that even in the forums that are less friendly to free speech, such as the limited or nonpublic forums, there is still the protection of the First Amendment in requiring that there be no viewpoint discrimination. In any event, ads containing statements or images that might be considered as “obscene” or statements that amount to “fighting words” or which could be viewed as “incitement to violence” are not protected under the First Amendment regardless of the forum involved.     

John Merrifield and Public Safety: Putting Satire on Trial?

Satire is a well-recognized institution in our society and culture and public safety is, well, a necessity. And they each travel in their lanes. But when these two lanes happen to cross paths how do we manage the encounter so we can allow them to continue to co-exist in our world?  This is the tricky question at the heart of the legal battle between the New York-based comedian John Merrifield and Josh Guillory, the mayor of the City of Lafayette Consolidated Government in Louisiana.  

But first here’s the story:

In summer 2020 the comedian created two fake events on his Facebook page announcing planned protests by ANTIFA (militant left-wing activists who oppose far right groups) in two Lafayette, Louisiana locations, one in the high-end community of River Ranch in July and the other at the Acadiana Mall in August. In response the city government deployed a large number of police officers, vehicles and other resources to both locations to tackle the situation. However, since the whole thing was a hoax, no protests in fact occurred at either location.

Later that summer, the city sued the comedian to recoup its purported expenses, claiming that the “hoaxes have cost the city considerable sums of money both in investigating and responding to the hoaxes.”  The city’s said expenses were tallied at less than $75, 000.

In a defiant response, the comedian refused to apologize and vowed to fight the lawsuit, claiming that his actions were merely those of a satirist and comedian who created satire events on a comedy meme page on two occasions. “Fool you once shame on me. Fool you twice shame on you,” he noted.  Merrifield, who is a Lafayette native, explained that he meant to highlight how police treat some groups differently and “fail to offer the same protections to the working poor and mentally ill people of color such as in the case of Trayford Pellerin’s execution.” (The week before the date of the second event in August, protests had taken place at the Acadiana Mall, over the police killing of Pellerin, a Black man.)        

So, what is the deal here, with what the comedian did? Is this allowable “satire” , under the First Amendment, as he claims or is it some sort of mischief intended by the comedian to cost the city some money, as the city’s lawsuit suggests?

As we commonly understand it in our society, a work of “satire” uses humor as a vehicle to critique, ridicule or scorn the actions of someone or some institution in the society; as a result, most acts of satire tend to have the purpose and effect of correcting the behavior of the person or institution that is the target of the satire.

Merrifield said that he intentionally worded the announcement in such a way that “anyone with discernment” would know it is a joke and that no reasonable person would think otherwise. The said event post invited only “card-carrying” ANTIFA members and also said things like “arms optional, legs encouraged.”

For its part, the city admitted that it knew ahead of time that the whole ANTIFA affair was a hoax but deployed the law enforcement resources anyway even though no actual protests were occurring on any of the two event days in question. The city also said that the officers who were deployed to the scenes were on their regular duties rather than any special duty connected to the planned protests. If this is all there is to all this, then it’s game over since the two sides can be said to be on the same page: the comedian intended his post to be understood as a joke and apparently the city did in fact understand it as a hoax by a comedian.

Except that the city offers some explanations for its actions; it said it was acting in response to phone calls from allegedly “concerned citizens” who believed the planned protests were real rather than fake (the city also referenced the comedian’s own mother as one of those who actually believed the planned event was real). Additionally, the city said that it chose to deploy police to the scene in order to pre-empt the actions of any counter-protesters at the planned event (here the city references the posts put out by right wing group Right Side Millennials who were threatening to oppose the planned event.)  

Given all this, the big question in this case is whether the actions of the city were “reasonable” under the circumstances, considering everything it know at the time.  If the answer to that question is yes, then the city’s odds of winning the lawsuit increases. Here’s another way to look at it: if the city had not taken the steps that it took, would the city have been considered “negligent” in not doing so. (In common parlance, “negligence” here means the city not taking proper or necessary precautions to safeguard public safety in the circumstances then existing.)  If the steps taken by the city are perceived as justified in the eyes of a “reasonable person” looking at the circumstances faced by the city at the time, then the city might have a remedy against the comedian, including, for instance, recouping its expenses from the situation.

If that is the case, it likely won’t help the comedian too much to say that his actions were intended as satire. The simple reason here is a practical one: under the law, public safety, just like public health, trumps humor. (Recall, for instance, all the lockdowns and other restrictions imposed on so-called non-essential businesses, including comedy clubs, during the Covid-19 pandemic on grounds of public health and safety.) The other possible problem for the comedian here is that his attempted satire is not your grandfather’s good old satire that stays within our traditional understanding of satire. In other words, it’s not like a cartoon or some similar critique of a person or a thing, but instead his actions were rather more aggressive with potentially practical consequences. In a manner of speaking, maybe he was somewhat more activist than critic.  

Yet the saving grace for Merrifield is that, by its own admission, the city did in fact understand his posts as a “hoax” that was not real. Plus, there were indeed no actual protests at any of the two locations of concern to the city which, by the way has admitted that the presence of its police officers and sheriffs at those locations was done as part of their regular duties rather than as a special effort to safeguard public safety in response to the situation created by the protests. Since a case like this one turns upon a balancing of the facts and circumstances of the case, it therefore seems likely that the actions of the city will not be considered as “reasonable” or “justified” under the circumstances.   The city is only allowed to do what is reasonable rather than what is overly cautious under the circumstances it faced at the time. If the city overshoots the mark in its assessment of the situation beyond what a reasonable person would do, then the comedian cannot be liable for the city’s error of judgment.

All things considered, the odds of winning in this case seem to tip clearly on the comedian’s side.  And so, one may wonder whether pursuing a lawsuit against a struggling comic who probably isn’t a deep pocket is the best use of the city’s time and resources at a time that the pandemic is still around. However, one plausible way to explain this situation is that by forcing Merrifield to spend money defending the lawsuit, Josh Guillory’s city (as the richer party) might be looking to teach the comedian a lesson not to “mess with” the city.  Such a game plan will be aiming to set up a “teachable moment” on the acceptable boundaries of satire in contemporary society. Needless to say, these are pretty interesting times in satire.  

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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Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

This is a case about a failed collaboration between two odd ducks on a project that is alleged to have damaged the reputation of one of them. The one that is suing, as one might imagine. Enter Roy Moore and Sacha Baron Cohen. One, the plaintiff, is a Republican maverick who fell short in his senate bid in Alabama a few years earlier and the other, the defendant, is a gadfly funnyman famous for pranking the unwary into embarrassing behaviors. Now they walk into a courtroom for their hour of reckoning on their failed collaboration.

First, here’s what happened: sometime in 2018, both parties took part in an episode of the defendant’s Showtime TV political satire series Who is America?  In a segment of the said episode, presented in an interview format, the plaintiff Moore, who had been dogged by sexual misconduct allegations, including child molestation accusations, willingly appeared as himself whereas the defendant Cohen posed as an Israeli Mossad agent. During the interview, the defendant produced an instrument he described as a pedophile detector which is programmed to beep around pedophiles. The instrument beeped when the defendant waved it in front of the plaintiff but did not beep when the defendant then waved the same instrument in front of both himself and another person who was present at the interview.  In response, the plaintiff walked out in protest, denying any and all involvement in child molestation.

In the present lawsuit, pending in federal court in New York, the plaintiffs, Roy Moore and his wife, allege defamation, intentional infliction of emotional distress and fraud, owing to Cohen’s portrayal of Moore as a pedophile, and therefore seek damages totaling $95 million against the defendant as well as the media entities Showtime and CBS.

For starters, this isn’t your typical case where somebody who is at arms-length is suing a comedian for defamation and other harms related to it. (Defamation here, simply put, means that the defendant has damaged or injured the plaintiff’s reputation in the community through a false statement of fact.) In such cases, as experience shows, it is pretty difficult to win in America because of the way the First Amendment guarantees free speech to everyone. For comedians who talk for a living, and sometimes, perhaps often times, talk in a way that offends other people, the free speech protection is a pretty big deal. And because they are comedians, most people listening to them often think they are making a “joke” rather than stating a “fact” (whether true or false) about someone else.  And, of course, when the person suing is also a “public figure”, like Roy Moore, a former chief justice of Alabama and a candidate in a high-profile national campaign for the US. Senate, then the obstacles to winning are even higher because the plaintiff will have to show essentially that the defendant either knew that the statement was actually false or that the defendant (recklessly) did not care that the statement was probably false. This is the so-called “actual malice” rule.

Predictably, as any comedian would in these situations, Cohen did file a motion asking for the early dismissal of the case but the court rejected his request and waved the case on to its subsequent stages. This despite the fact that Moore had signed a “release” in favor of Cohen and his co-defendants at the start of the parties’ collaboration on the project.  So why does this case seem something of a different animal and why has it already lasted longer than your typical defamation case against a comedian?  

First, one should note that the parties in this case actually collaborated on the project in question, unlike the ordinary case where a comedian did something on his own that is alleged to have “harmed” the person suing him. And the release in question was signed prior to the collaboration, as one might expect. And this is where it gets complicated because the defense that a comedian is just making a joke has been tainted in this case by an allegation of fraud against the comedian: Moore claims that his signature on the release “was obtained through fraud”, thus making the release “void and inoperative”.   To explain this, Moore said he was conned into doing the interview by Cohen putting on a disguise and posing as an Israeli anti-terrorism expert and also that he had been falsely told by the defendants that he was being presented with an award for his support of Israel.

Thus far, Moore’s argument is doing quite well in court, judging by the dismissal of Cohen’s motion, and this means that deciding whether there was in fact defamation or not will have to wait until the court first decides whether the agreement (the release) between the parties can be enforced and if so in whose favor. If Cohen is right, then that’s likely the end of the road for Moore because by signing the release he’d already exonerated Cohen for whatever loss or damage arises from his participation in the TV program.  Of course, if, however, Moore is right, then the agreement will not protect Cohen and his co-defendants Showtime and CBS, who will then have to defend themselves against Moore’s big money claims for defamation and emotional distress in the normal manner in which such cases are litigated in court.   

Now, if the case goes forward to a likely jury trial, how will the jury look at it? Well, this being a defamation case, Moore’s biggest hurdle, as suggested above, will be getting the jury to look past the fact that Cohen is a comedian and thus to think that he is doing anything other than just making a joke. That, plus the fact that Moore is a “public figure” would seem to cut in Cohen’s favor. Yet the determination of that matter by the jury will be affected by a few factors on the minus side for Cohen: for starters, an allegation of fraud consisting in disguising one’s actual identity to a collaborating partner isn’t a good look. Plus, when it comes to the question of “malice”, it won’t help Cohen’s side that Moore had previously warned them not to air the allegedly “defamatory” segment but they did so anyway, meaning that they intended to actually air it and if it turns out that it included false statements of fact, then just because Moore happens to be a public figure won’t help Cohen’s side.   Besides, Moore’s claim of fraud, for instance, will be decided on different principles which are more neutral than the defamation claim, where the law is much more comedian-friendly.

In the end, though, Cohen, as a comedian, still seems to have better-than-even odds of victory in this case, at least on the defamation claim; yet he will come to find that the more a comedian gets away from the traditional boundaries of comedy and wanders into dicey areas like punking folks via questionable tactics, the more that comedian loses the generous protections afforded him by America’s First Amendment. Especially when the comedian is dealing with people of means, who can afford to make their vengeful point, winning the lawsuit itself be damned. (Already, the lawsuit has been on since 2018; has been re-located from Washington DC to New York, where presently a nasty war of words is raging between the parties’ lawyers over alleged “discovery” misconduct, with threats of sanctions on both sides.)  Describing Cohen’s actions against his clients as “malicious” and “despicable”, Moore’s lawyer, the scrappy veteran litigator Larry Klayman vowed: “great harm has been done to my clients, which must be addressed and remedied.” Well, so far, as an adversary, Roy Moore is proving not to be an ordinary plaintiff, the lesson being that Cohen can still get hurt even if he wins the lawsuit.

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The Predicament of Mike Ward: An American Perspective on Canadian Comedy

What’s the difference between a Canadian comic and his American counterpart? Simple answer: location, location, location.

The brash Canadian comedian Mike Ward has had quite the unpleasant experience in his march through the comedy landscape of his country. From all indications, if he thought his native Canada was a place where a comedian could safely ply controversial material, he figured wrong, it seems. And for good measure, such a comedian could also find himself in the poor house should some in his audience decide to take him before the authorities.

But before getting into how Canadian and American comedy stack up against one another, it may be well to briefly recount the Mike Ward story:

In 2010, Ward, in a series of routines he performed at his shows in Canada, attacked a disabled kid named Jeremy Gabriel, whom he denounced as “ugly” and lamented the fact that the kid had not yet died. (Gabriel, 13 years old at the time, was born with a condition known as Treacher Collins syndrome which left him with a deformed face and skull. At the time of Ward’s attack, Gabriel had become something of a local celebrity in Canada’s Quebec province for his singing ability, including singing with Celine Dion as well as singing for the Pope in 2006. Ward claimed that he had initially supported Gabriel’s good fortune, on the assumption that the world was coddling him because he would soon die. Ward said that he felt duped when years had passed and Gabriel was still going strong with his singing fame. In reaction, the comedian said he went on the Internet to find out exactly what Gabriel was suffering from. Ward said he was surprised at what he discovered: “You know what it was? He’s ugly, godammit!”

Long story short, Gabriel and his family sued Ward before the Quebec Human Rights Commission for allegedly “hurting, vexing and humiliating” him and as well as for damaging his [Gabriel] confidence and singing career and causing him to be mocked at school. In its 2016 ruling, the Commission said that the comedian’s joke violated Gabriel’s right to dignity, honor and reputation as well as his right to equality and to be safe from discrimination. As a remedy, it penalized Ward with a total fine of $42,000 (consisting of $35,000 to Gabriel and $7,000 to his mom).

The Commission’s ruling outraged Ward and many of his supporters in the comedy community, He promptly set up a crowdfunding campaign and launched an appeal against the ruling. Speaking on behalf of other comics, Ward said: “If the judgment is maintained, no one will be able to dare to be a stand-up comic, because normally you make fun of things that are controversial, otherwise it’s not funny. …If anything that’s controversial can authorize someone to say, I was hurt, I’m going to court, then we’re finished.” Then he tagged on an interesting analogy: “To bring a comedian to court who does dark humor, for a trashy joke, is like giving Vin Diesel a speeding ticket for driving fast in [the movie] The Fast and the Furious.”

Now, let’s consider a different scenario, this time involving Canada and the U.S., its close neighbor to the south. Both countries are democracies and open societies. So, suppose the Ward situation occurred in the US, will the comedian’s fate be any different? In other words, if Ward would have appeared at some comedy venue in America and viciously attacked some disabled kid, will he face a peril to his career similar to what happened to him in Canada? Well, the short answer is: Probably not!

For starters, considering the central role of the First Amendment’s free speech guarantee in the conversation in America’s public square, there would seem to be no room for an agency like the Quebec Human Rights Commission. Fact is, the agency’s watchdog role carries way too much potential for censorship than the First Amendment could live with. To the blessing of comedians in America, controversial speech oddly seems to enjoy enormous protection from censorship. To say things that hurt somebody else’s feelings or even things that are very cruel are allowed in America’s social conversation. Needless to say, Americans get it clearly that the “free society” they pride themselves in can also be a pretty uncomfortable society where some of the most offensive things ever may yet be safely said. Pretty much everything is allowed, other than a few situations like where somebody’s speech could be viewed as inciting violence or be considered as “fighting words” (the sort that would likely draw a violent reaction from the person to whom they are addressed).

So, in the above scenario, merely attacking a disabled kid, however viciously and however tacky the action might seem, would not be reason enough to find legal liability against a comedian and thus to impose a punishing fine upon him. In short, the Mike Ward ordeal is simply a Canadian story that is hard to imagine in a place like America.

However, given the Gabriel family’s other allegation that Ward damaged Gabriel’s reputation by his joke, plus the Commission’s references to Gabriel’s honor and reputation in its decision, some have wondered why a good old-fashioned defamation action cannot be successfully pursued against Ward even in an American court. Well, not much luck here, either. And the reason is simple enough: Statements that a professional funnyman made to audiences who understood said statements as a joke would not qualify as the kind of false statement of fact that would damage somebody else’s reputation, which is the very point of a defamation action.

Yet just because comedians south of the border are allowed by the law to be offensive to others doesn’t mean that an American comedian whose stock in trade is the plying of unnecessarily “outrageous” material will enjoy a smooth sail to a comfortable career. In an era of political correctness and cancel culture, there is the law and then there is the court of public opinion, two different venues. Whereas the law may not take an outrageous comedian’s money from him by way of court fines, for its part, the consuming public may refuse to give him any money at all by simply not patronizing his comedy. This is a powerful reality that neither Ward nor any comedian in America or Canada for that matter can afford to ignore.

Still, in America, fortunately for comics, political correctness and the law continue to have some good degree of separation from each other unlike in Canada where they currently appear to the merging and this surely can’t be good news for comedy. As the Mike Ward situation demonstrates, it seems that when speaking of the very survival of a comedian’s career, the whims of political correctness and cancel culture are more manageable hazards than the blunt instrument of a court order directed at the comedian. As it happens, an unfavorable court order is no laughing matter, even for a funnyman.


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Conan O’Brien Blinks in Joke Stealing Faceoff: When Principle Meets Reality

Well, anyone could have seen this coming: That Conan O’Brien will eventually blink in his staring contest with Robert Alexander Kaseberg, the man who accused him of stealing jokes from his Twitter and blog platforms and including them in an opening monologue on O’Brien’s TBS show. As a matter of fact, this writer had precisely predicted the current outcome of this case in a post on this blog back in November 2015, a few months after the lawsuit was filed. (See “Accusing Conan O’Brien: Two Joke Writers Walk into a Courtroom.”)

But, alas, the inevitable is now upon us with the announcement on May 9 that the parties have settled the case which had been set for trial on May 28 in federal court in San Francisco. Among the five stolen jokes cited in Kaseberg’s lawsuit was the one about footballer Tom Brady re-gifting his Super Bowl MVP truck to an opposing team coach; plus, one about the shrinking height of the Washington Monument in cold temperatures and one involving a struggle aboard a Delta Airline flight. Kaseberg claimed these jokes were stolen from him between late 2014 and early 2015.

In what seemed like a victory lap, Kaseberg issued a statement saying he was proud that his case helped shed light on an issue facing all comedy writers and that he was happy to be part of contributing legal precedent on the issue of protection afforded to jokes.

For his part, on May 9, O’Brien penned a column in Variety titled “Why I Decided to Settle a Lawsuit Over Alleged Joke Stealing,” in which he explained his decision to walk away from the ring. He essentially said his priority was to “defend the integrity and honesty” of his “remarkably hard working and decent” writers for whom this episode had been “upsetting” in addition to four years and countless legal bills.

Although O’Brien’s action was predictable, it seems quite unfortunate that he was forced to call it quits even though he probably knew that he was more likely than not to eventually win the case on the merits. Before he buckled, he appeared determined to stick up for principles and fight the case on its merits. Sadly, principles appear to have lost its present battle against cold reality.

Anyone who understands the challenge of doing comedy in the Internet age of Twitter and other social media would easily appreciate how much O’Brien was in a pickle here. As O’Brien rightly noted in his Variety column, comedians who make jokes about the same events can sometimes render these jokes in more or less similar ways or even words. This is the so-called “parallel thought” phenomenon. O’Brien cites an instance from 24 years earlier involving himself and David Letterman and Jay Leno all feasting on the same Dan Quayle joke when the former veep announced he was not running for president. O’Brien even recounted 15 separate situations discovered by his staffers where Kaseberg himself had tweeted similar jokes to those already rendered on O’Brien’s show. (Incidentally, if O’Brien would have chosen to fight on in this case, these incidents might all be part of his defenses and they’d be helpful ones.)

In a copyright lawsuit like O’Brien’s case, part of what the plaintiff is required to show is that the alleged joke thief did in fact have access to the material stolen. With an open forum like Twitter to which the entire world potentially has access, it is a cake walk to prove that somebody else had access to an earlier post on Twitter. What an easy advantage for any plaintiff at the starting gate.

And the actual litigation itself would have been a major pain for O’Brien. Both he and his writers probably would have had to testify plus expert testimony and more. Aside from the stress and legal expenses, the sheer drama and uncertainty of testimony and its media coverage are not pretty things. Considering that Kaseberg is a relative unknown who could surely use the limelight afforded by this fight, it becomes obvious that he and the high-priced lawyers involved rather than O’Brien would be the true beneficiaries from all this. Needless to say, despite his better-than-even odds of winning the lawsuit, O’Brien was looking at what could only be described as a pyrrhic victory.

So, in the end, O’Brien seemed to have no choice but to cut his losses. Yet, it bears noting that O’Brien’s dilemma here is a sad commentary on the state of contemporary comedy in the age of Twitter.

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)