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.


Jim Belushi: Sticking Up for a Name and a Brand

jim_belushi_photo6Lately, comedian/actor Jim Belushi seems to be spending quite a bit of time in court trying to protect a prized asset: his name and its brand. In show business, there can be plenty to a name, especially if money is riding on it. Obviously, this knowledge isn’t lost on Belushi as he makes his adventures in the courtroom with a double-barreled lawsuit.  But first here’s the story:

As it happens, Belushi owns the “Belushi Comedy Bar” trademark which he licenses to stand-up comedy clubs in exchange for royalty payments. In one lawsuit [filed in Chicago on June 5, 2015] Belushi claims that in the fall of 2014, he and his company Bessie Blu entered into an agreement with Kyle Lane, co-owner of Chicago club “The Comedy Bar”, which would allow the comedy club to use the Belushi Comedy Bar trademark in its business operations. As part of the overall agreement, which was in draft form only, Belushi’s company Bessie Blu laid out close to $17,000 in November 2014 for the installation of new lighting on the stage of the club’s new location. The trademark deal itself, however, fell through in January 2015. In the same fall 2014, Belushi claims that he and Bessie Blu made a loan to Kyle Lane to help the business operations of the club on the understanding that the loan will be repaid “in a timely fashion.” Following the January 2015 collapse of their trademark deal, Belushi alleges that Lane has failed to repay the loan and has refused to sign a document that would “memorialize” any oral agreement they had related to the payments.

The third leg of this lawsuit was Belushi’s claim that he was owed about $39,000 for some promotional work he did on behalf of the Comedy Bar between 2012 and 2013 − following an oral agreement he made with Lane. Belushi’s alleged promotional work included TV appearances, radio and newspaper interviews and visits to high-end hotels in the Chicago area. The bill for the promotional work includes lodging and travel expenses allegedly incurred by Belushi who lives in Los Angeles. In this lawsuit, Belushi seeks reliefs in damages for breach of contract and unjust enrichment.

The other lawsuit filed one day earlier [June 4, 2015] against Sahar Chavoshi, the club’s general manager, was based on the events that occurred after January 2015, as stated above.  According the Belushi’s lawsuit, Chavoshi maligned or bad-mouthed him to other comedians, leading to the cancellation of some shows at his other clubs. Belushi claims more than $50,000 in his defamation lawsuit against her, plus punitive damages.

At the outset, one thing that catches the eye here is the way that Belushi filed two separate cases against Lane and Chavoshi revolving around the same failed trademark deal. Though he has the right to do so, this is sort of an unusual move in these situations. For starters, it probably would be less expensive to do it all in one shot by way of a single lawsuit. Plus, if he was looking to get this stuff all behind him as soon as he can, then clearly, pursuing two separate lawsuits, a tactic that may well land him in two separate courtrooms, isn’t the best way to achieve that goal. Given all this, it just might be better for him to consider consolidating the two cases together in order to fight his battle in a single lawsuit. (It is difficult to see what tactical advantages he could reap by continuing to pursue the two lawsuits separately.) The other thing about the lawsuits is that we’re dealing with mostly oral agreements with respect to the claims he is making. Even in the one situation involving the trademark deal for the Belushi name, where something was allegedly written down, the document remained just a ‘draft’ that never evolved into an actual valid agreement. So, as a practical matter, the disputes arising from that agreement will be resolved in the same way that disputes are resolved in oral or unwritten agreements generally.

Now, that said, how will Belushi fare in his two lawsuits? Can he win?

Let’s begin with the unjust enrichment claims. This relief is usually granted as an “equitable remedy.” In lay person’s language, this legal jargon simply means that the court is acting in the interest of “fairness” in order to prevent one person from hanging on to ill-gotten gains at the expense of somebody else who had dealt with them in good faith and who, to the knowledge of both of them, was expecting to get paid for their services. As an equitable remedy, it is often granted to somebody when the better option of a “legal remedy” isn’t available.  Compared to an equitable remedy, a legal remedy in a contract situation presents more of a black-and-white scenario: for instance, two people have a deal, “signed sealed and delivered” where one person promises to paint a house in exchange for the other person promising to pay him $100.  If the first person does paint the house and the other person fails to give him $100, then the law steps in and enforces the agreements. This is a legal remedy situation where the lines of obligation are clear and the court knows exactly what obligations it is called upon to enforce.

However, if the agreement isn’t written down anywhere, it means that we can’t see where one party had promised to paint a house in exchange for the other party paying him $100. Yet, in these situations, the party who has painted the house, for instance, is asking the court to make the other party hand him the $100. This is an equitable remedy situation and the only reason for the court to intervene here is to promote “fairness”: If the court fails to intervene here, then the party who doesn’t have to keep his promise will have been “unjustly enriched” at the expense of the party who took the trouble to keep his own promise. Yet, fairness or not, the court cannot intervene unless it is shown the evidence that one party had indeed promised to paint the house in return for the other party paying him $100 and also that the first party had gone ahead to actually paint the house as promised. Obviously, this is a more difficult situation because there is no valid written agreement in existence. In the real world out there, an agreement that is oral in nature rather than written falls into this category where only an equitable remedy is available to prevent unjust enrichment. Like Belushi’s agreement here.

Speaking of Belushi’s case, one can see how it is a pretty good candidate for an unjust enrichment consideration by the court. For instance, if someone like Belushi who lives in Los Angeles, would pay travel and lodging expenses in order to visit places of business in Chicago on several occasions on behalf of somebody else, it is more likely than not that he was doing so because of an agreement with that other person and also that he was expecting to get paid for his trouble. The scenario becomes even clearer when you add all the other things Belushi claimed that he did in the course of his promotional work on behalf of The Comedy Bar. However, as in any unjust enrichment case, a party in Belushi’s position would only be awarded the “reasonable value” of his services by the court. This means that Belushi may not get all the money he is asking for unless the court determines that such amount of money represents the reasonable value of his services.

Concerning the alleged trademark agreement, since the agreement was only a draft that never became a valid agreement, the attempt to recover the nearly $17,000 spent for the stage lights, for instance, will probably be treated as unjust enrichment claims.

Then there is the breach of contract claim concerning the alleged loan. To be sure, this one seems more problematic than the other two above for the simple reason that by their very nature loan transactions are typically written down. In the real world, an oral loan agreement is an awfully bad idea because anyone can guess that such an agreement could very easily be denied by the person who has the obligation to pay back the loan. In our case here, the alleged understanding between the parties that the loan would be “repaid in a timely fashion” won’t be enough to save the claim from this problem of proof. This really is a classic evidentiary nightmare. Certainly, the time to “memorialize” the agreement in this case was at the very beginning of the deal.  If the other side is refusing to play ball at this late hour, assuming Belushi’s allegations are true, well, anyone could have guessed that this was a real possibility in situations like this.

Now, how about the defamation claim against Chavoshi? For starters, a defamation action pertains to an alleged injury against someone’s reputation which causes damage to the victim. Here, as stated above, Chavoshi’s alleged “public campaign to malign” Belushi led to the cancellation of some appearances by comedians at other Belushi-branded comedy clubs. Yet, as a well-known celebrity, Belushi will likely be treated as a “public figure” for the purposes of a defamation lawsuit. Usually, as compared to an ordinary Joe, it is more difficult for a celeb to win a defamation claim in America because they’d be required to show that the other person either said something they knew to be false or that they didn’t care that, under the prevailing circumstances, what they said about the celeb was probably false. With an ordinary Joe, somebody could be on the hook for defamation by making a false statement about him even if the maker of the statement didn’t know that the statement they were making was false or that they were merely careless in making the statement. In Belushi’s case here, Chavoshi would probably be off the hook if what she said about Belushi was either true, partly true or could be regarded as merely her opinion of Belushi.

In the end, there is no telling just yet what the final outcome of this case will be. But from experience, cases like this one usually settle before trial because people in business would rather get on with their lives than be spending time and money in court in the company of wrangling lawyers. However, if passions remain high and the matter goes forward, the odds are that Belushi will fare better with the unjust enrichment claims than with the others.

THE HAPPY DAYS’ ROYALTY LAWSUIT: Grabbing the Gravy After the Party Ends

Happy Days_photo6Sometimes in show business, especially when you’re dealing with a successful TV comedy, such as CBS’ Happy Days, just because the party is over (and as some folks like to say, ‘Elvis has left the building’) doesn’t mean that the gravy from the show’s success may not continue to flow. Yet, the lucky folks who have a right to the gravy still have to be smart enough to find it and then collect it. Because, to be sure, there’s never a shortage of folks in the business world who would keep the gravy from those entitled to get it if those people aren’t paying attention. But first, here’s the story.

In April 2011, five cast members of the hit CBS comedy Happy Days (which ran from 1974 – 1984 before going into syndication) sued both CBS and Paramount Pictures for breach of contract and fraud. The cast members claimed they were owed royalties of more than $10 million, arising from the use of their images in various merchandising operations by CBS and Paramount. The plaintiffs listed various merchandise lines on which their images were allegedly used, including casino slot machines, T-shirts, lunch boxes, board games, greeting cards, glasses and DVD packaging. As it happened, the plaintiff -cast members launched the lawsuit after discovering (sometime in 2010, more than 15 years after the show ended its run on CBS) that the Happy Days image was being used on casino slot machines and other items. The cast members who filed the lawsuit include the actors Anson Williams, Marion Ross, Don Most, Erin Moran and the widow of Tom Bosley. (Incidentally, other cast members like Oscar-winning director Ron Howard and Harry Winkler opted to stay out of the lawsuit.)

Well, a little over a year later, the parties decided to settle their differences out of court rather than fight it out before a judge. Each side claimed satisfaction with the outcome of the settlement. Though the plaintiff cast members got nowhere near the kind of money they’d asked for in the lawsuit, they won something that’s a big deal for them, namely, the right to receive future payments from CBS and Paramount. “We will continue to receive all of the merchandising royalties promised to us in our contracts,” said plaintiffs’ attorney Jon Pfiffer. For their part, CBS and Paramount claimed that they appreciated the way the court had earlier on dismissed the plaintiffs’ “far- reaching claims, which paved the way for an ordinary settlement based on contractual issues.” Fair enough!

Perhaps both parties saw the settlement as something of a wash and for that matter it is always a good thing for each side to see a benefit for itself in any settlement. Yet, it is no big surprise that CBS and Paramount would welcome a chance to settle the case. For starters, their willingness to settle at all says something about the strength of the plaintiffs’ case because, let’s face it, not many folks in their position would settle a multi-million dollar case if they thought they could win it rather easily when push comes to shove in court. As a matter of fact, despite a couple favorable rulings from the court, CBS and Paramount ultimately didn’t succeed in their attempts to dismiss the plaintiffs’ case.

So, anyhow, the case settled. Good for both sides! But the nature of the issues in the case has caused some industry folks who themselves also work with TV studios on comedy shows to wonder how both sides would have fared if the matter had gone to trial on the breach of contract and fraud claims. Obviously, the settlement of this case did not quell their curiosity. So, perhaps it is well to say a couple things about just what could have been in the case. For starters, the claim of a typical plaintiff in a breach of contract case is that though the said plaintiff has fulfilled its part of the deal, the other side, by contrast, has not fulfilled its part of the agreement that they both entered together. Naturally, the terms of the agreement are everything in any contract case, especially if the parties are so fortunate as to have a written contract in existence between them. As one might expect, the clearer the terms of the agreement are, the greater will be the chances of the parties being able to resolve matters in an “ordinary settlement based on the contractual issues,” to borrow the post-settlement language of CBS. All that anybody has to do in those situations is to look at the facts on the ground and simply check those facts against what the clear terms of the agreement said should be done whenever those facts exist. Simple as that!

Speaking of contracts with studios for TV comedies like Happy Days, the usual practice is for the talents (actors) to secure for themselves a right to share in any merchandising revenues that result from their show, usually through the payment of royalties to them. Often times, we’re talking about the use of their images or names on merchandise as well as any other use or appropriation of their identity in the stream of commerce. In our case here, it is noteworthy that the plaintiff cast members of Happy Days claimed in their lawsuit that, under their written agreement, they were entitled to between 2.5 percent and 5 percent of net revenues from any merchandise out there in the marketplace that bears their images.

That brings us to the fraud claim in this case. In layman terms, fraud means deceit, as in being deceived by somebody else. For example, if Paul enters an agreement with Wu to give Wu some money if certain things or conditions come to pass and then Paul willfully fails to tell Wu that those specified things or conditions have indeed occurred and thereby denies Wu the right to receive the money promised, that would be a case of fraud. To be sure, a case of fraud could happen in a contract situation, either because one party to a contract totally fails to disclose something to the other party to the contract or because he willfully chooses to disclose incorrect or wrong information to that other person. It is important to mention here that in a contract situation there is usually an implied obligation to act in ‘good faith’ and ‘deal fairly’ and therefore to disclose what is known as “material” information to the other party to the deal. In a situation where the second party (like Wu in our example above) is entitled to money under certain circumstances, letting that person know that those circumstances have indeed occurred is the kind of “material” information that the first party (like Paul in our example above) would be required to disclose to the other party. This kind of implied obligation to act in ‘good faith’ and ‘deal fairly’ is usually imposed upon the party who has control of the information, such as CBS and Paramount in our case here or Paul in the example given above.

Anyhow, as a practical matter, anytime that a breach of contract action is accompanied by a fraud claim, what usually happens is that where the terms of the agreement are clear and also if the facts and circumstances provided for (or anticipated) in the agreement are shown to have occurred, then the court will order the ‘stronger’ party to render an accounting to the other party. The ‘stronger’ party in these situations is usually the party that is in a ‘position to know’ the facts in question. In our case here, we’re talking about matters like the exact amount of revenues that are coming into the till from the use of images of the Happy Days cast members on casino slot machines, T-shirts, glasses and other merchandise. Needless to say, it is important to ascertain these figures in order to determine just how much monies are due to the plaintiffs in the form of royalties. Also, in our case here, CBS and Paramount would obviously be considered the stronger party when it comes to the kinds of information that is required to be disclosed to the other party.

As it happens, given the stance they adopted at the outset of the case, it is clear that both parties seemed to ‘get it’ when it came to their respective positions in the litigation. The plaintiffs’ side claimed that because CBS and Paramount had a ‘Don’t Ask Don’t Pay’ policy with respect to the royalty payments and had barely paid them anything in more than 10 years, their lawsuit was essentially a reminder to CBS and Paramount about their obligation to pony up. For its part, CBS acknowledged that the monies were indeed owed and that they were working to resolve the matter.

Considering all the above, it is obvious that if the parties here would have pushed matters to a full trial on the merits, the court likely would have ordered CBS and Paramount to render an accounting to the Happy Days cast members regarding all the monies rolling in from the use of their image on all kinds of merchandise. Looking at it objectively, it seems rather smart that the two sides opted to sort out their money matters by themselves instead of allowing the court to do so for them by way of a court order. With a court order, both sides have no say at all over what the court will do and even more troubling is that they may wind up not liking whatever terms the court will impose on them.

In the end, this particular breach of contract case ended well for everyone, especially the cast members of Happy Days who actually had their money on the line. And one might add that the case was of a rather predictable variety and ended both when it ought to end and how it ought to end. Yet the simple lesson here for comedians and other entertainers alike is also a lesson that is not always heeded. First, it is important to draw up a good agreement with clear and easy-to-understand terms. But then it is not enough to simply acquire a right to receive benefits under an agreement. It is also important to watch out for occasions when that right might materialize so that the right can be enforced. (As noted above, the plaintiffs- cast members claimed that they first discovered the use of their image on the casino slot machines in 2010, some 15-plus years after their show ended.) Again, this suggests that just because the other side may be required by law to disclose beneficial information to their counterparts does not mean that they will in fact do so. For all kinds of reasons, including sometimes a desire to simply hang on to the money, they may simply choose not to do so. Long story short, in the brave world of business, sometimes when ‘you snooze you lose.’

GEORGE WALLACE’s Lawsuit: A Million-Dollar Lesson at the Bellagio

george_wallace_photo3This past April, something really nice happened to George Wallace: A friendly nod from a Las Vegas jury made the funnyman more than a million dollars richer and sent him smiling to his bank. And for working comics everywhere who either travel for gigs around the country or do their gigs locally, Wallace’s win is certainly good news not least because it could happen to them in a similar situation. But the case also offers an opportunity for most industry observers to consider the other kinds of circumstances that could arise when working comics are hired to perform gigs at any venue. As it happens, each of these circumstances carries different consequences for the comedians as well as the venues that hire them. But first, here’s the story:

In December 2007, Wallace, the longtime resident showman at The Flamingo in Las Vegas, was hired to perform at a private party at a casino resort, the Bellagio, also in Las Vegas. However, sometime during the performance, Wallace tripped on some loose wires onstage and ruptured his Achilles tendon. Following his injuries, Wallace sued the Bellagio for negligence, claiming damages for loss of earnings in the present and in the future, medical expenses as well as for pain and suffering. This past April, after a full trial, the jury found the Bellagio liable for negligence and awarded Wallace the sum of $1.3 million. To be sure, Wallace’s injuries from his fall were not a joke at all: Aside from enduring tremendous pain and suffering, Wallace was also forced to quit doing his long running show at the Flamingo.

Before considering other situations that comedians might encounter when they go out to do gigs, perhaps it is useful to start by looking at why Wallace won his court case in the first place. For starters, when a person files an action for negligence, like Wallace did against the Bellagio, his point (in plain terms) is that the other person he is suing has failed to exercise the level of ‘care’ that the law requires people in those kinds of situations to exercise for the benefit and protection of other people. In each negligence lawsuit, the person who is suing is often the person who has been injured due to the carelessness of the person being sued. Needless to say, in order for the person who is alleged to have been negligent (or careless in layman’s language) to be on the hook for damages, the other person must have sustained an actual injury. No injury no damages.

In Wallace’s case, the carelessness (or want of due care) that he alleges against the Bellagio was that loose wires were allowed to be present onstage which then caused him to stumble during his performance. Speaking of the level of care required in these kinds of situations, the law applies the standard of a ‘reasonable person’ in each situation. In this case, the jury’s verdict in favor of Wallace means the jury thought that a reasonable venue in Bellagio’s situation would not allow loose cables onstage during a comedian’s performance any more than a reasonable store in Walmart’s position or Duane Reade’s position would allow puddles of water on the floor of their aisle during business hours when customers are present. In nailing the Bellagio for negligence, Wallace had the good fortune that some employee of the Bellagio itself had taken photos of the stage after the performance, which showed loose cables coming out of two speakers. To be sure, Wallace appreciated the employee’s help all right. “Thank God for that employee at the Bellagio,” Wallace remarked.

And when injury occurs in a negligence claim, a plaintiff like Wallace could actually claim damages for lost income both backwards and forwards against a defendant like the Bellagio. (Plus, of course, damages for things like pain and suffering and medical expenses.) In Wallace’s case, he sought millions of dollars in damages, first for the earnings he lost because of his injury and then for all the money he won’t be making in the future because of his injury. Well, he ended up not getting as much money as he’d originally asked because, obviously, it all comes down to what the jury believes is fair. In this case, the jury gave Wallace $1.3 million for lost income, pain and suffering and his medical bills. Interestingly, the jury gave nothing to Wallace for his expected loss of earnings in the future. Why? Simple answer: “He was back to making the money he was making before,” explained the jury foreman. (Wallace’s view that the injury had caused him to walk with a permanent limp apparently did not sway the jury when it came to matters like his claim for ‘future earnings’.)

As indicated above, aside from what happened to Wallace, there are other situations where comedians who are out there performing gigs could face some trouble onstage. Now, what if, for instance, somebody in the audience at the Bellagio would have attacked and beaten up Wallace while he was onstage because of something he said. Suppose that Wallace was so badly injured during such an attack that he couldn’t perform his gigs for a while. Could he, in those circumstances, have been able to go after the Bellagio seeking damages for his injuries? Well, as tempting as it might be to say he could sue them, the correct answer is most likely that he can’t. For starters, he wouldn’t be able to sue the Bellagio for negligence because here we’re not talking about some accident or some other case where the Bellagio failed to exercise reasonable care for his protection. Rather, we are dealing with what would be an intentional act by somebody else for whom the hotel would not be responsible. The attack here would be an assault and battery, which is an intentional tort. Generally, event venues like the Bellagio and others are not held liable for those kinds of random acts perpetrated by patrons at their facility. Why? Because they usually would not have foreseen such outbursts in advance and therefore couldn’t have been able to prevent them.

Yet it doesn’t mean that the attacker would go scot free. In such a case, Wallace would simply have to sue him directly for damages for assault and battery and take his chances that the guy isn’t some loser who has no ability to pay any jury award that Wallace can win against him. (Of course, it would be a different case if, for instance, Wallace were beaten up and robbed by muggers on Bellagio’s premises. In that case, we’d be back talking about negligence and liability of owners of premises and we’d be dealing with matters happening offstage rather than onstage.)

However, it is worth noting that there can also be a flip side to these encounters, especially since we’re talking about showbiz situations where matters can sometimes escalate rather quickly. In some situations, it may be that the comedian himself is the aggressor, perhaps against somebody in the audience. (One may recall how the comedy legend Richard Pryor reportedly once jumped off the stage during a performance and stabbed a guy in the audience with a fork. Why? The hapless guy had allegedly heckled Mr. Pryor. Then in a different instance, another comic stepped off the stage during a performance and decided to mingle with the audience, and while there he grabbed a guy’s head and brushed the poor guy’s face against his exposed crotch. Well, this time, a lawsuit followed.)

So, when a comedian at a performance does something wrong to a member of the audience, just who gets sued and for what exactly? Well, if you guessed that the offending comedian himself would get sued for assault and battery, you guessed right. No doubt, this one is an easy shot and pretty much anyone can figure that out. But could any of those audience members also turn around and sue the comedy club (or venue) that hired the comedian? Could they, for instance, say that the venue owed them a ‘duty’ to prevent what the comedian did to them? Well, the short answer here is that this one most likely won’t wash. Tough luck! Again, as stated above, a venue will generally not be held liable or responsible for the intentional (and wrongful) act of somebody else because usually situations where somebody just freaks out and does something crazy are generally not foreseeable in advance by those who run the venues. Again, the simple logic here, as in the one above, is that if you can’t foresee them, then you likely can’t prevent them.

Besides, somebody who’s been hired to perform as a comedian is more like an “independent contractor” who works for himself and determines how he does his job. He is not like an “employee” of the venue whose wrongful acts or misconduct can be attributed to the venue. Even if the comedian has a special arrangement with the venue to do repeat gigs there, such as the residency deal that Wallace had at the Flamingo, that still does not make him an employee of the venue and he remains an independent contractor who must answer for his own misconduct.

In the end, it is obvious that Wallace’s case ended pretty well for him ─ in a quite enviable million-dollar way. And of course, any other comedian in that situation would have hoped for the same result. But even more than that, in each situation where comedians are out there doing gigs, this case seems like a ‘teachable moment’ for both performers and venue owners alike.

MARC MARON Plus ADAM CAROLLA: When Patent Trolls Rain on Comedy’s Podcasting Parade

Maron_Carolla_photo1In the comedy industry these days, it seems like more and more people are talking about podcasting. In the new book Comedy Under Attack: the Golden Age and the Headwinds (, podcasting was portrayed as one of the hot new things in modern comedy and thanks to his WTF podcast Marc Maron was toasted as its foremost trailblazer. But Maron isn’t the only comedian who has made giant strides in that arena. There is Adam Carolla, too, a comedian who reportedly holds the record for having the “most downloaded podcast” around. For Maron, Carolla and their comedy brethren the podcasting movement had been flourishing in peace until recently when they came under assault by a group of folks who have been referred to, rather disparagingly, as ‘patent trolls’. (By way of simple explanation, ‘patent trolls’ are guys who make their money by registering patents for products or processes that they themselves do not use but would sue other people who actually use those patents for any purposes. In more polite language, they are referred to as ‘Non-Practicing Entities’ or NPEs.)

But, first, here’s the story:

Sometime in early 2013 Maron received a letter from an East Texas company known as Personal Audio informing him that his operation of his podcast show was a violation of their software patent. The message was clear: he needed to either license the patent from them at a fee or face legal consequences. While Carolla didn’t get a [warning/demand] letter: the Personal Audio people actually did hit him harder than they hit Maron when in January 2013 they sued Carolla’s ACE Broadcasting Network over his self-owned podcast ‘The Adam Carolla Show.” Personal Audio is reportedly offering to settle the case against Carolla for $3million. (The company has also gone after comedian Chris Hardwick, the current host of Comedy Central’s @ Midnight, over his ‘Nerdist Podcast’.) By the way, “podcasting”, a term coined from a mix of ‘I-Pod’ and ‘broadcasting’, is a technology that basically allows users to pull down MP3 audio files onto their computers or personal digital audio players (like iPods) from a podcasting website.

And from the look of things, the company (founded by a guy named Jim Logan) isn’t just going around making threats and bloviating about consequences; it actually seems to play pretty hard ball: for instance, in 2011, it got a jury to award it more than $8million against Apple, Inc, on its claim that Apple’s i-Tunes playlists infringed its patent. Personal Audio has also forced big names like Samsung, Motorola, Sirius, Amazon, RIM and others to enter into patent licensing agreements with it after it sued them in patent court; it has also sued NBC and CBS.

Not surprisingly, all this stuff sounds pretty offensive to Maron: “We’re just guys talking on microphones out of our garage…then someone comes out of nowhere and says we owe them money.” For his part, Carolla has dug in his heels and has vowed to fight it out with Personal Audio in court. This past March he launched a fundraising campaign, complete with a promotional video. His “Save our Podcasts Defense Fund” ( troll) aims to raise about $1.5 million for the battle. (As of April 24, they’d raised more than $363,000 and counting.) That same month of March, Carolla and Maron organized a show in Redondo Beach, California, attended by talk show host Jimmy Kimmel, Drew Pinsky and others, in support of Carolla’s legal defense fund.

To be sure, patent trolls are a matter of big concern to comedians. For starters, alongside all the blessings of social media, podcasting has become a quite valuable new tool for comedians today in comedy’s “golden age”. Podcasts are pretty cheap to produce and distribute and pretty much anyone with a computer and microphone can manage to get around to doing it. To comedians, the chance to reach their audiences in this way is very appealing. Needless to say, if the patent trolls win and licensing fees become the norm, then podcasters will have to pass on the cost of licensing fees to their listeners. Long story short, this whole thing creates the risk of a new ‘pay-to-play’ model that will quickly transform the economics of podcasting to the disadvantage of comedians.

And there’s another reason: People have talked about ‘p.c.’ (political correctness) and have knocked the so-called ‘pc-brigade’ as one of the major forces out there today that are giving comedy big-time hell. On their own, patent trolls may be less visible to many people as a threat to comedy, but the threat they pose to comedy is no laughing matter: for instance, unlike the pc – brigade who are merely pursuing their vision of a good society, the patent trolls are in it only for the money and in so doing they are reaching their hands more directly into the pockets of comedians. Even worse, they are threatening to curtail the further growth of podcasting in the comedy industry, especially among the newbies and the less established comics who have less money and almost certainly lack the clout of guys like Maron and Carolla.

Aside from the comedy industry, patent trolls have also been a real pain for people trying to make a living in other sectors of the economy like coffee houses, hotels, restaurants, supermarkets, real estate agents and so on. And surely the activities of these patent trolls have done them no favors in the court of public opinion. For instance, one of the most aggressive patent trolls out there is one called Innovatio IP Ventures from California, which claims a large number of patents in the operation of Wi-Fi services.

In a rather brazen tactical decision, Innovatio simply chose to ignore the product manufacturers (like Cisco and Motorola) and instead went directly after hotels, coffee houses and other end users of Wi-Fi, threatening them with expensive lawsuits and demanding a couple thousands of dollars in licensing fees. Soon after it was formed in early 2011 by a California lawyer named Noel Whitley, the company reportedly sent over 8,000 demand letters to end users across all 50 states literally asking them to pay up or come to court. The calculation here is clear and simple: end users who are not sophisticated about patent matters would rather pay a few thousand dollars than engage in very expensive patent litigation in federal court.

Not surprisingly, many commentators out there have openly lamented how much things have gone off the rails and so far away from the original goal of the patent law which was to reward genuine inventors like Thomas Edison and Nikola Tesla (think the light bulb, cameras, motion pictures and more) rather than guys like Jim Logan and Noel Whitley, who seem to be smiling to the banks today with bundles of (other people’s) money.

In the overall scheme of things, guys like Maron who are merely “talking on microphones out of their garages…” to their friends and fans are obviously just “end-users,” just like all the hotels, coffee houses and real estate agents who are getting hammered by patent trolls. And Carolla, too, of course! As one might expect, these mere end –users wouldn’t likely know much about all the technical mumbo-jumbo of patent-speak, much less the complexities of high-wattage patent litigation in federal court. Ironically, these hapless end-users are the very people that the patent trolls have chosen to confront rather than the big manufacturers and patent vendors who have both the technical knowledge and the money to fight back against the patent trolls.

But exactly what does the patent law do to help the little guy, Maron and Carolla included? Well, not a heck of a lot, at the present time at least. To the contrary, the patent trolls seem to be having a field day. The federal courts have said that when patent trolls go after anybody, including poor end users, the patent trolls are – get this!- exercising their First Amendment ‘right to petition’ the government. Innovatio played this hand brilliantly in 2001 when it beat back Cisco’s attempt to protect its end users from Innovatio’s ‘smash-and- grab’ tactic. What a funny new way for a patent troll to use the First Amendment, the American comedian’s best friend, of all things.

So, just where do matters stand now for Maron, Carolla and the comedy industry in the battle against patent trolls? Well, here’s the thing: First, Carolla had no choice but to do something since he’s already been sued. Yet his decision to push back pretty hard is a smart move in itself. For instance, if they were to enter into settlement negotiations later on, his hardball tactics so far would make him a stronger player in those negotiations with Personal Audio. Certainly, it would be wise for him not to take the settlement option off the table because complex litigation such as this one can seem like an unruly horse galloping to an unknown destination. Plus, Personal Audio’s case may not be so weak in the end; after all, its prior encounters with powerful entities like Samsung and Motorola so far have proven that Personal Audio can actually win games. In short, no one knows the strength of Personal Audio’s case yet. So, it’s not yet party time for the podcasters.

Yet, going forward, the comedy industry ought to do more than just express support for Carolla and here’s why: Even if Carolla wins, it doesn’t necessarily mean that Personal Audio will shut down or that its lawyers won’t find some obscure ground to go after any other podcasters. (Not unless, of course, its patent is declared invalid.) Generally, the result of any litigation binds only the parties involved. Therefore, in the long run, the best solution is to change the law so that every podcaster is protected against patent trolls for good.

The expected game changer here is the proposed legislation called ‘the Innovation Act,’ which passed the House of Representatives in December last year. Concerning the menace of patent trolls, the best part of the law for comedians is the provision that protects end users by allowing the big tech guys like Cisco, for instance, to step into the shoes of their customers and take on the patent trolls on their behalf. The proposed law would also discourage the activities of patent trolls by forcing anyone who files a patent lawsuit to pay the legal fees and other costs of the guy who ends up winning the case.

And then there is the part that requires people filing such lawsuits to lay out their cases in such great detail that then makes it real easy for the courts to dismiss the cases pretty early on in the process if the cases have no merits. Unlike the situation we have today, the new law will force people filing such patent lawsuits to spend time and money in doing some pretty extensive research on their patent infringement claims. And they are required to have all this stuff ready right when they walk through the courthouse doors. To be sure, guys like Maron and Carolla would be sitting pretty today if the proposed new law were already in place.

Yet, no matter how this thing ends for Maron and Carolla, there’s a lot more to the fight than just the two comedy gentlemen. In reality, for the reasons stated above, the entire comedy industry has a dog in this fight, indeed a big one. And Carolla was correct when he said: ‘They are suing me, but they are coming after you next.’ To be sure, this problem with the patent trolls isn’t going to go away on its own, especially because the patent trolls have already seen the dollar signs and will do all they can to stick around for the money. To solve the problem, the patent trolls will have to be forced out of the game.

In the end, the one great thing to come out of the Maron and Carolla situation is that their struggle has focused the comedy industry’s attention in a big way on this worsening problem of patent trolls. As end users of the podcasting technology, the comedy industry will do well to join forces with other interest groups in the ongoing campaign in Washington to pass the Innovation Act. This is where guys like Maron, Carolla, Jimmy Kimmel, Joe Rogan, Chris Hardwick, and Greg Fitzsimmons, plus all the other comedy superstars with a large microphone, who are supporting Maron and Carolla in their anti-patent troll campaign, can help get things done, And this is especially important now that both foot dragging in the Senate and election-year politics are threatening to slow things down in Washington with this bill. It’s time to finish the job by helping to push the bill across the finish line. That’s a smarter and more reliable way to save the podcasting space from further assault by patent trolls. Litigation alone just won’t cut it, even if the patent trolls lose. The law will have to change.

EDDIE GRIFFIN: Comedy and Homophobia Collide in Court

eddie_griffin_photo5Doing stand-up comedy is no easy thing: for starters, it’s hard enough being heckled by someone in the audience because of something the comedian said. And then, things could get even more complicated when someone in the audience chooses instead to throw something at the comedian onstage because of something that the comedian had said. Still, the complicated situation could get even more serious when the same audience member who throws the stuff at the comedian then decides to drag the comedian to court as well? With a situation like this, any funnyman faces a couple of hard, unfunny choices beginning with how to react to the person attacking him onstage and then figuring out how to defend himself in the attacker’s lawsuit? But seriously, at least one comedian, Eddie Griffin, is grappling with these issues these days.

First, here’s what happened:

In July 2012, Griffin was performing onstage at Tommy T’s Comedy Steakhouse in Pleasanton, California, when a woman in the audience threw water at him. Griffin retaliated by emptying his water bottle on her, and a fracas ensued. The woman and her friend Leslie Champlin were ejected from the club before the cops arrived; the club was forced to close for the night and the show didn’t go on. Not wanting to let matters slide, Champlin filed a lawsuit against the club and the comedian, claiming that her civil rights were violated because she and her friend were discriminated against based on their sexual orientation. They were a lesbian couple. She also sued them for battery and negligence. She claimed that Griffin’s shtick targeted both she and her girlfriend because they were a lesbian couple, thus leading up to the water-throwing incident and their eventual ejection from the club. She also claimed that the other audience members turned on them as well because of their sexual orientation.

So, exactly how much trouble are Griffin and Tommy T’s in? Well, let’s consider the claims against them: First up, the battery claim. In layman’s language, a ‘battery’ occurs whenever someone purposely makes physical contact with somebody else without proper justification. Here we’re talking about an unlawful physical contact that was done intentionally. What makes the contact ‘unlawful’ is that it is an offensive coming-into-contact with another person without a good excuse. As far as offensive conduct toward another person goes, a contact made either by touching somebody or hitting that person with a stick is viewed the same way as a contact made by pouring something like a beverage at the person or perhaps even spitting at the person. Of course, this means that actions such as accidentally brushing up against another straphanger inside a crowded subway train or inside a crowded bus, for instance, would not be considered a battery. Same thing goes for a cop grabbing the arm of a suspect during an arrest. In either case, the contact was either accidental as in the subway train situation or had a lawful justification for it, as in the case of the cop.

In Griffin’s case, he is being sued for pouring water on the plaintiff. Well, such an act is obviously a ‘battery’ and it won’t be a good defense for him to say that he was retaliating against her or paying her back in kind. Of course, if he poured the water on her in self-defense that would be a different story. But this is not a self-defense situation because he didn’t have to pour water on her in order to avoid some physical harm to himself. He could have simply walked away from the confrontation. And of course, he could always turn around and sue her himself for ‘battery’ because she did it to him first. And for her part, it cannot be a good defense for her to say that she threw water at Griffin because he provoked her with his anti-lesbian shtick or routine. Nope, that won’t cut it! So, as a practical matter, when it comes time for the court to figure out what damages will be awarded to her for her claim, she will likely be faced with a situation that is more like a wash, as in a battery for a battery.

Then there is the negligence claim against the comedy club Tommy T’s. Here, the plaintiff (Champlin) is essentially claiming that the damage or injury she suffered during the encounter occurred because Tommy T’s failed in its ‘duty’ to prevent what happened to her. She alleged that the comedy club knew that Griffin was drunk when they let him take the stage for his comedy routine. As a result, the plaintiff will likely be arguing that Griffin’s anti-lesbian rant, coupled with his other offensive actions, such as his thrusting his groin in front of her and her friend and later on pouring water on them, were the kinds of damage or injury to other people that somebody in such drunken state would do. The point of the plaintiff here being that the comedy club was in a position to foresee Griffin’s wrongful actions toward the plaintiff ahead of time and could have taken steps to prevent it. That the club failed to do so is the reason plaintiff Champlin is seeking to hold them liable for negligence.

Well, at the end of the day, it seems like Ms. Champlin might have a few problems with this claim: for starters, holding one person responsible for the negligence of another person is usually applicable to ‘master-servant’ relationships, for instance, the relationship of an employer and an employee. Even so, it is still a tough sell to try to hold a master or an employer responsible for the class of wrongful actions that are regarded as ‘intentional torts’ when those acts are committed by the servant or employee. Griffin’s actions here belong to the category of ‘intentional torts.’ (In quite simple language, ‘intentional torts’ are wrongful actions done on purpose, rather than things done out of neglect or due to a failure to be careful in one’s actions.)

In our case here, Griffin is not an employee of the club: he’s simply one of many comedians who get booked to perform at the comedy club; in that capacity, he’s more of an ‘independent contractor’ rather than an employee. Long story short, since we are basically talking here about the intentional tort or wrongful action of an independent contractor, rather than an employee of the comedy club itself, it is fair to say that Ms. Champlin’s odds of winning her negligence claim in this case against Tommy T’s are far from good.

And, finally, there is the civil rights claim of discrimination based on sexual orientation. As far as claims go, this may well be the strongest hand that the plaintiff (Champlin) can play in this entire lawsuit. Incidentally, the Griffin affair recalls the case of Canadian comic Guy Earle in 2007 at a Vancouver restaurant when he had a nasty verbal encounter with three lesbian hecklers who were attending an open mic show at which he was the host. The women sued both Earle and the restaurant for discrimination based on sexual orientation. The restaurant was sued for not preventing Earle’s actions. Earle claimed he attacked the women with homophobic slurs after they disrupted the show by not only ignoring his requests that they stop talking but also by their taunting him onstage and flipping him the bird. Well, the human rights tribunal that heard the case chose to side with the women and (get this!) awarded thousands of dollars in their favor against both Earle and the restaurant. The appeal is still pending.

To be sure, Earle’s case is somewhat different from Griffin’s case in that there was no immediate physical contact onstage in Earle’s case (a physical confrontation occurred off-stage afterward); plus, Earle’s case took place in Canada before a government agency that was not a court. Yet, in America, just as in Canada, discrimination based on sexual orientation is against the law. In so many American states, including California where the Griffin incident took place, there are specific laws that make it illegal to discriminate against folks or to harass them in places of public accommodation, resort or amusement on the basis of their real or perceived sexual orientation. Speaking of ‘harassment’ under these laws, actions or behaviors that can be regarded as hostile, offensive or intimidating all come under the umbrella of ‘harassment’ and when that happens, damages are usually awarded, mostly for pain and suffering.

In our case here, it can be said that regardless of what defenses Griffin might have to this particular claim, his actions toward the two ladies, on its face, probably qualifies as ‘harassment’ under the anti-discrimination laws; and these actions no doubt arose from Griffin’s perception that the ladies were lesbians. To be sure, it is possible that Griffin and the restaurant may well end up beating this particular claim, considering that the two women were ejected from the club after a fight in the same way that the club might have chosen to eject any other disorderly patron, lesbian or not. Plus, it’s not as if the ladies were the only ones who missed out on the entertainment that night since because of the fracas the club reportedly closed for the night anyway.

Yet the fact remains that at least the ‘spirit’ of the anti-discrimination laws were broken in the process: if they ladies would not have been perceived as lesbians, they probably would have enjoyed that night’s comedy show without incident, just like other patrons, including other women in the audience. But instead, thanks to their being ‘perceived’ as lesbians, they got picked on, endured crude gestures directed at them, ended up getting in a fight, then getting ejected from the club. They suffered an unpleasant experience that is against the spirit of the law.

As the Guy Earle case shows, comedians have been down this path before and the result wasn’t a pretty one. Chances are that if this case would have been brought in an earlier time, say, 30 or 40 years ago, the situation might have been different. But, for better or for worse, we live today in an age of political correctness where homophobia is increasingly perceived as not ‘cool.’ Meaning that it is entirely possible that ‘intangible factors’ (call them the ‘atmospherics’ of a trial) such as the negative attitude of today’s society toward homophobic actions and behavior could well tip the scales in a close case like this one when the court is weighing which way to throw its support.

In the end, of course, it’s hard to predict how this particular civil rights claim will be decided given the water throwing on both sides and more. But in the interest of keeping the focus on comedy and avoiding distraction, it might be better not to wait to see how the court will decide this claim, and to just settle this whole matter and move on. At this point, that’d be the smarter thing to do, it seems.