Accusing 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…
A few years ago, star comedian Jerry Seinfeld’s family spent quite a bit of time in court and with lawyers. First, his wife gets sued for plagiarizing (or copying) somebody else’s cookbook. Then Seinfeld himself gets sued for talking about the lawsuit filed against his wife when he appeared on David Letterman’s show. And it…
The world of comedy is a weird one that can serve up both big laughs and the occasional puzzle. As things stand, not many people would guess that a crippled comedian in a wheelchair making fun of her disability in a public park would be told she may be breaking the law or that folks helping…
When it comes to money matters, mixing things up with Donald Trump can be a costly proposition. This means that even making a bet with the real estate mogul and Celebrity Apprentice host can earn someone a court date and maybe even set the person back a couple million dollars. Not even if the bet was meant…
How the heck is the right-wing posse upending the entire comedy universe?
When it comes to the business of copyrights and its protection, one could be forgiven for thinking of comedians as downstairs people compared to musicians. To be sure, this old problem also seems to be a matter of respect as well as money. Not surprisingly, the comedy community these days is trying to do something about it and this time it’s the streaming services that are in their crosshairs for allegedly using their work without paying compensation for it by way of licensing. Enter Lewis Black: the comedian is suing the streamer Pandora in a California federal court for $10 million in copyright infringement damages, for allegedly streaming about 68 of his works without a license. The works in question are comedy recordings.
Black is only the latest comedian to file this sort of claim against Pandora, which is already being sued by comedians like Andrew Dice Clay, Ron White and others, including the estates of George Carlin and Robin Williams. A win in these lawsuits will be a huge development both in terms of expanding the landscape of available copyright protection and of course turning on an additional money tap for comedians. The other big streamer Spotify avoided similar litigation last year by moving pre-emptively to yank some comedy recording from its platform after it couldn’t agree terms with the copyright holders. In that dispute, Black himself, in a gesture of solidarity with the aggrieved comedians demanded that his own works be taken off Spotify platforms as well.
But what is really at issue in these cases and can Black and his brethren in fact win?
For starters, it bears explaining that when a work is protected by copyright, it means that the said work is both an “original” creation of the copyright owner as well as a thing that is affixed to a “tangible medium.” The said copyright owner could be an artist, a designer, a writer and more.
Now, though the allegation of the comedians we’re dealing with here is that the streamers are basically not paying for the recording being streamed at all, the question that must ultimately be resolved when it comes time to pay is exactly what particular elements of the comedy “work” should be paid for under a license. In other words, exactly what contents of the work are being licensed by the streamers? (The sort of copyright that comedians hold in their work is known as “spoken-word” copyrights.)
While the streamers like Pandora and Spotify claim that a comedy recording is a single unified product that should attract only one license fee for the whole work, the comedians, for their part, claim that a comedy recording does in fact have two portions, namely, the recording itself and then the composition, or comedy writing, as separate components. To support their case, the comedians point to the situation with musical copyrights where the license purchaser, say a streaming service, buys and pays for both the musical recording itself as well as the composition of the song lyrics, as separate licenses. This argument was well foreshadowed by Black’s now famous remark that “a joke is just as powerful as a lyric of a song,” with the obvious implication that since the streamers are already paying separately for song lyrics, why not a joke as well.
Then again, one might well ask: if a musical recording and comedy recording are so analogous to each other, how come the two products have been treated so differently for so long and how come the comedians are only speaking up now?
It is worth noting how this question of timing seems to have played into the defense of the streamers as they attempt to fight off the recognition of this additional copyright, namely, comedy writing, which the comedians are seeking. In this regard, the streamers’ argument can be described as one based on tradition, something that some may well perceive as somewhat oppressive. And it appears to relate to rather philosophical questions about the historical place of comedy in the broader society’s scheme of things and the inevitable value judgments around such questions. In this context, it is common knowledge that comedy’s existing recognition as an authentic art form or rather as “its own thing” is of rather recent vintage. By contrast, music and the visual arts (think sculpture, painting, et cetera) have long been respected as legitimate art forms with valid claims to their own integrity and thus deserving of protection via things like copyright.
Now fast forward to contemporary times and it is soon obvious that comedy’s fortunes have changed: with its newfound status as a legitimate art form, basking in the glow of a “golden age,” comedy no doubt has acquired a quite defensible claim to the greater protection of its integrity, just like music and the visual arts. Thus, for the comedy community, there is no better time than now to press this additional claim as part of an overall effort to protect every aspect of their art form and to benefit from it where appropriate. Quite simply, if not now, when?
So, in a manner of speaking, this brings us to a history versus law scenario: the comedy community’s good timing in launching this fight for a bigger slice of the pie is one thing, but whether the court will recognize their claim is quite another, considering the novelty of their claim. Though there is no certainty as to what the court will do, yet, if the comedians can justify their new claims under the law, then history won’t be able to stand in their way and they will win big. As already noted, such a big win will expand the contours of what elements of a work of comedy are protected from infringement and thus available for additional licensing. In this battle for more respect and money it seems like the comedians are the odds-on favorites to win, given the similarity of a joke and a song lyric in this copyright context and the sheer oddness of continuing to treat the two items differently. But, of course, the jury’s still out on the matter.
The Artificial Intelligence (AI) crisis across the creative industries apparently shows no signs of slowing down anytime soon and now comedy seems to have been thrown into the mix of its hapless targets. Only this time comedy appears to have won the opening battle in its own war with AI, at least going by the lawsuit that has been in the news lately. The said lawsuit was the one filed by the estate of the late comedy legend George Carlin, who died in 2008, against two podcasters for their offending use of AI in the violation of his publicity rights and for copyright infringement.
In the case under discussion, the two podcasters Will Sasso and Chad Kultgen, used “deepfake” technology (which performs a digital imitation of real people) to create an AI character named Dudesy, who mimicked Carlin in a faked comedy special titled “Geroge Carlin: I’m Glad I’m Dead,” which was then posted on YouTube in January 2024. Shortly after the lawsuit was filed by Carlin’s estate in federal court in California, the case was settled on April 1, 2024, with the podcasters agreeing to permanently delete the material from the Internet and to refrain from using his image, voice, or likeness without the appropriate permissions. As of the filing date of the lawsuit, the offending audio routine had garnered more than half a million views on YouTube.
To be sure, the heightened interest of the Carlin estate in the Dudesy comedy special here was entirely predictable. In the recent book “Comedy Goes to Court: When People Stop Laughing and Start Fighting” at chapter Six, (available on Amazon), the author uses the separate cases of the comedian Louis CK and The Three Stooges, to illustrate how the fame of any successful entertainer could continue to generate the “gravy” from any number of sources, including the commercial use of the person’s very name, voice, likeness, and more, even long after the person is no longer alive, in which case the late entertainer’s family or whoever controls their estate takes custody of the copyright to this valuable property interest. Given this, it should not require much imagination to see why the Carlin estate would be quite opposed to the unauthorized Dudesy comedy special, both from a financial point of view or otherwise.
More broadly, and aside from the concrete concerns of the Carlin estate, the use of deepfake technology in this manner throws into sharp relief the nightmare scenario faced by people in creative industries, including actors, singers, comedians and more, who worry about being displaced from their jobs by AI products in a substitution sort of arrangement that renders them unemployed. (Recall, for instance, the long SAG-AFTRA strike that ended last fall.)
The question that then arises is how the newly evolving deepfake technology squares with the law regarding the protection of copyrights and other intellectual property products. In this regard, it bears noting that this sort of unauthorized imitation of a copyrighted product sits at the core of what the copyright law is designed to prevent. And since this imitation by Dudesy is apparently motivated by the commercial interest of the podcasters, it lacks the sort of excuse that could otherwise justify an invasion of someone’s else copyright, typically the “fair use” doctrine, which includes notions of de minimis, market substitution and the like. In the said Carlin audio, Dudesy the AI character explained that he had first “listened to all of George Carlin’s material and did my best to imitate his voice, cadence and attitude as well as the subject matter that I think would have interested him today.” Surely, this indicates that so much of the Carlins’ copyrighted product was taken in the training of the AI character.
In a nutshell, what we have here with the Dudesy comedy special is a naked invasion of a protected copyright that carries with it a strong probability of unfair market substitution of the copyrighted product, not least because the unwary could be led to think they are getting an actual George Carlin comedy performance.
Also, accompanying the copyright violation in this case is the clear violation of the right of publicity which, as discussed in the book referenced above, is one of the important rights that fall into the estate of a deceased celebrity, and this right is of the sort that simply cannot be utilized by someone in the position of the podcasters without the permission of the copyright holder’s estate. Long story short, this appears to be an open-and-shut case of copyright violation and publicity rights violation by the podcasters. No wonder the podcasters quit the fight early with a promise to be on their best behavior and not to re-offend. Good riddance, one might say.
So, what, if any, are the lessons here for the creative community? Short answer: AI can be checkmated by the copyright law when it goes too far in the imitation of protected works in comedy and other creative spaces. Same thing for invasion of publicity rights. The flip side here, though, is that not everything is protected by the copyright regime. Thus, AI being an evolving technology may yet find some less brazen way to infiltrate this protected territory and thus cause discomfort, especially if the pesky technology is being deployed not for a wholesale takeover or substitution of the protected material but rather as an aid in the process of creating something else inspired by it.
Yet, if or when that happens, the good news is that due to the increasingly observational and experience-based nature of contemporary comedy, a rather unique and even personal bond tends to develop between comedians and their audiences, a sort of dynamic in which the interposition of AI might be truly problematic. Apparently not so for comparable creative endeavors like movies and music where the odds of displacement by AI seem greater, and this is unfortunate.
In the end, whether the just-repelled AI invasion of the comedy space will get a second life at some future date or occasion is the sort of question that only time will answer. For now, though, thanks to the Carlin estate lawsuit, comedy sure seems to have won a big victory worthy of a genuine celebration.
Editor’s Note: The companion book to this blog “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!
A recent article in The New Yorker by the reporter Clare Malone revealed that comedian Hasan Minhaj had lied about some of the events that he had recounted in his comedy work. And this revelation has prompted a swift and brutal backlash. Yet, on closer examination, this may well be a case of the proverbial much ado about nothing resulting in a needless attack on the messenger of a rather noble message: social justice.
In the article, Minhaj admitted that the following were not true: that his young daughter was hospitalized for exposure to anthrax; that he had interacted with a certain FBI informant; and that a white female friend had turned down his high school prom invite at the last moment. These incidents were used to demonstrate the discrimination and marginalization he had endured as a Muslim of Indian descent living in America. And the stories themselves did appear in his various comedy works for Netflix and others, including “Homecoming King” (2017), “Patriot Act” (2018) and “The King’s Jester” (2022).
While conceding that “lying is comedy isn’t always wrong,” Jason Zinoman, the influential New York Times critic-at-large asserted rather harshly that Minhaj had “crossed a line”. Calling him “the boy who cried racist wolf,” MSNBC columnist Noor Noman, a Muslim Pakistani American, charged that Minhaj’s behavior by potentially stoking disbelief in future claims of oppression by marginalized groups had damaged the cause of social justice and aided white supremacy. Minhaj’s other critics have accused him of weaponizing his otherness in an unfair attack on other people. Defending Minhaj, however, comedian Whoopi Goldberg noted: “There’s information that we will give you as comics that will have grains of truth, but don’t take it to the bank…that’s our job, a seed of truth. Sometimes truth and sometimes total BS.”
Of course, at issue here is whether it is permissible for a comedian to base the message of their material on a factual lie or untruth, not least because Minhaj is a comedian that is active in the social justice space.
In his own defense, Minhaj said: “All my stand-up stories are based on events that happened to me,” he said. “I use the tools of stand-up comedy — hyperbole, changing names and locations, and compressing timelines — to tell entertaining stories. That’s inherent to the art form. You wouldn’t go to a haunted house and say, ‘Why are these people lying to me?’ The point is the ride. Stand-up is the same.”
Then he almost sabotages himself by introducing the complicating factor of “emotional truths”, a process whereby he utilizes his fictional stories to dramatize the travails of his marginalized community. This concept, though, does not seem like the best peg on which to hang his defense, given that, “emotional truth,” subjective, nebulous, and imprecise as it is, can fairly be said to provide a potential shield to anyone seeking to take liberties with factual accuracy in any given situation. Not a good look in his current circumstances.
However, the good news for Minhaj is that based on comedy’s tradition, he is allowed to make stuff up as premises for his joke. Put differently, he is entitled to as much factual accuracy or truth as he chooses in making his point. (Even his adversaries concede that when it comes to the factual basis of a comedian’s joke, “lying” is not a deal breaker.) And for society at large, comedians stand on a different footing from other people with respect to the accuracy of their factual statements. In his Times opinion on the Minhaj controversy, Zinoman deals with this issue of trust as he references Minhaj’s past interview with Barack Obama in which the former president admits that he had consumed all the books, albums and movies featured on his annual “best-of” lists.
Rather instructively, Zinoman wrote: “To quote Minhaj, everything is built on trust. That trust operates differently for politicians and journalists than for artists, but it matters to us all. Treat it carelessly and the price can be steep.” (emphasis supplied). Darn right, concerning the “trust” question, when Obama the politician makes factual statements while recommending a product or service, we put it on a different scale than when Minhaj the comedic artist is serving up factual premises for his joke. Context is pivotal here: surely, to expect or demand more accuracy from Obama’s factual claims than Minhaj’s is not to treat matters of trust carelessly.
Next, Minhaj’s critics seem to suggest that because he is dealing with social justice issues as a “trusted source” for political and social news, a paradigm shift is required with respect to the facts, one that requires that he adhere to factual accuracy. However, given that the more the merrier in the noble endeavor of social justice work, comedians are no less welcome as campaign partners than, say, lawyers or environmental activists, not least considering their large influence on our contemporary pop culture. And it would be self-defeating for our society if we were to exclude the voices of people like Minhaj merely because, by virtue of their occupational background, they are not obligated to adhere to factual accuracy as rigorously as, say, a lawyer making a closing statement to a jury or a congresswoman participating in a budget debate on the deficit on the House floor.
In the end, perhaps Minhaj’s comedy may not seem sufficiently ethical to his critics and, one must concede, he has been rather opportunistic in some of the paths he has taken to stardom, and this writer is no fan of some of his tactics. Yet, even as he engages in his social justice advocacy, he is nonetheless allowed under comedy’s rules of the game to practice his own chosen brand of comedy, warts and all. To insist otherwise is to foist one’s value judgments on his craft and/or to take one’s eyes off the ball of his social justice work and thus to attack the messenger while ignoring his vital message. Surely, society can do better than that.
**Editor’s Note: The companion book to this blog “Comedy Goes to Court: When People Stop Laughing and Start Fighting“, is now available on Amazon and at bookstores. Go get your own copy of the new bestselling book today and, of course, enjoy the read!
Few things in our contemporary public square terrify people as much as cancel culture, a phenomenon that seems to literally banish people from society’s platforms as it disappears them from public view. However, recent events appear to demonstrate that the almighty cancel culture may be losing some of its potency as the arbiter of who stays and who gets bounced from public view. In a documentary released during last year’s summer titled “Sorry/Not Sorry,” some female victims of Louis CK’s infamous sexual misconduct scandal, which broke in 2017, lamented what they perceived as him coming through the scandal relatively unscathed.
The said scandal had erupted following a New York Times story in which Louis CK admitted to exposing himself to several of his female colleagues over the years, a development that led shortly thereafter to his banishment from the public square, including cancellation of his then upcoming movie as well as the scrubbing of his work from HBO’s archives.
But the star comedian seems to have made a successful comeback to his career performances after a roughly one- year hiatus, starting out with a show at the legendary Comedy Cellar and then on with other performances that included a sold- out show at Madison Square Garden in 2021. Plus, short of being canceled, he won the Grammy in 2022 for Best Comedy Album and he has been active on the entertainment scene ever since.
As it happens, Louis CK has defied the odds of conventional wisdom before in his career: In December 2011, for instance, he took the unprecedented step of cutting out the proverbial ‘middleman’ from the distribution chain of ticket sales when he made the video of his Standup Special at the Beacon Theater available for direct download by visitors to his website at a fee of just $5.
Yet his apparent victory over cancel culture, while a good thing for other reasons, has nonetheless exposed the dark underbelly of the entertainment ecosystem which is undoubtedly male dominated and even misogynistic in character, a situation that is the not-so-hidden suggestion of the above documentary. In this regard, it is noteworthy that it was Louis CK’s adoring, mostly male, fans plus influential voices in the public opinion arena, including podcasting king Joe Rogan, that have made possible his soft landing. Aside from Louis CK, there is also the case of Dave Chappelle, another male comedy star, who even more easily than Louis CK survived the cancel culture pushback over his attacks on the transgender community.
In the matter of cancel culture, one can see a clear difference between how Dave Chappelle and Louis CK were treated rather less harshly and, in Chappelle’s case, with relative kid gloves, versus how, say, Roseanne Barr and Kathy Griffin were literally blackballed from the public square in the wake of their own misadventures: In May 2018, Barr posted a racist tweet about former Barack Obama aide Valerie Jarrett and shortly thereafter ABC canceled her career comeback sitcom “Roseanne”, while in 2017, Griffin held up a gory image portraying the severed head of Donald Trump and CNN yanked her from her co-hosting gig of the annual New Year’s Eve Broadcast with Anderson Cooper.
Making matters worse, the male comedians in question, unlike their female counterparts, did not seem exactly sorry for what they had done and to the contrary even seemed to come off as rather tone deaf. In Chappelle’s case, he boasted that he enjoyed punching down and for his part Louis CK, who in fact got in trouble for masturbating in front of women, said in his 2019 Comedy Special “Sincerely Louis CK”: “I like jerking off…I’m good at it, too. If you’re good at juggling, you wouldn’t do it alone in the dark. You’d gather folks and amaze them.” For his tone-deaf gag in this album, Louis CK incredibly scored a best comedy album award at the 2022 Grammys, beating out the likes of Lewis Black, Chelsea Handler, and Kevin Hart.
Can anybody really imagine Roseanne Barr, Kathy Griffin or any other female comedian getting away with this sort of behavior? Speaking of which, Louis CK’s getting away with it is not lost on the documentary’s participants either: “Not only did he get away with it, he’s like rubbing it in our faces,” noted Megan Koester, one of the women featured in the documentary.
All things considered, what happened to the aggrieved women in the documentary is rather unfortunate, as is Louis CK’s apparent non-apology apology for his misdeeds. Yet, in the interest of not throwing away the baby with the bath water, we ought to acknowledge something of a bright side to all this, which is really something worth taking inspiration from, not least for all those concerned about the outsized negative impact of cancel culture on our public square and its discourse. What may be emerging here is the reality that cancel culture, as it turns out, may not be the sort of terrifying and formidably brutal force that it has been cracked up to be; plus, of course, the pleasing fact that cancel culture’s backlash can be overcome, hopefully only in deserving situations, by the concerted action of a self-confident and forgiving society.
More importantly, for our society to get the full benefit of this positive development, now that the door of forgiveness seems to be opening, it is vital that the sort of apparent second chance accorded to Louis CK must similarly be extended to all deserving players in our public square, whether they be men or women. Perhaps especially women and other disadvantaged groups. Human beings make mistakes and the path to rehabilitation must remain open to all who have done their time and are willing to make amends for their misdeeds, cancel culture be damned. Let us dare to celebrate the bright flip side of the coin in the Louis CK sexual misconduct scandal.
How does the push for more diversity in late-night comedy square with a declining viewership?