Jad Sleiman: Is the Ban on Comedy Moonlighters a Last Acceptable Prejudice?

On By carlunegbuIn Other Controversies

   Talk of expanding one’s career horizons and you might think of moonlighting as one of those harmless pursuits that people indulge in, sometimes for money, other times just for the hell of it. Except maybe when it comes to comedy, it seems.  Recently, we saw the case of journalist Jad Sleiman, who works for…

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What’s a Comedy Central “Roast” Doing at the Supreme Court?

On By carlunegbuIn FreeLeave a comment

Without a doubt, comedy is a big deal these days in our society, especially in our pop culture, and when done smartly at an appropriate forum, the jokes can mean a lot of money, but when done in a certain way at certain places, they can also be a deadly serious affair that can wind up in front of the judges at the US Supreme Court. Not least when it involves a Comedy Central roast featuring the famous and talented insult comic Jeff Ross and a murder trial in a red state like Texas. And, under the circumstances of this case, the crucial question that pops up is whether an apparent joke is still just a joke or perhaps something rather dark and incriminating. But first, here is some background to all this:

In 2011, a Texas man named Gabriel Hall murdered an elderly man and badly injured his wheelchair-bound wife in College Station, Texas. In 2015 while Hall awaited his murder trial, comedian Jeff Ross visited the jail house where he and other inmates were being held and over some days Ross filmed a special for Comedy Central titled “Jeff Ross Roasts Criminals: Live at Brazos County Jail”. Ross claimed he was there because he was a believer in second chances and that he wanted to see if the inmates at the jailhouse had a sense of humor about their situation. Among the inmates Ross spoke to was Hall and although his talk with Hall was not ultimately included in the special when it aired, the prosecutors in Hall’s trial nonetheless subpoenaed the footage of Ross’s conversation with Hall and played it for the jury during the sentencing phase of Hall’s trial following his conviction a few months later. The prosecutors aimed to use the footage to persuade the jury that Hall had shown no remorse for his crime; as a result, the jury sentenced Hall to death.  In the footage, Ross asked Hall what he was in for, whether he had hacked somebody’s computer? Hall joked that he took a machete to someone’s screen. Ross then remarked that Hall looked like “a fuckin’ scary dude,” to which Hall said: “Oh, come on, I wouldn’t hurt a fly.” Then, Ross said: “What about a human?” And Hall replied: “Ah, they’re annoying.” The banter also included Ross making some derogatory comments about Hall’s Asian heritage.      

Well, Hall’s lawyers have challenged the use of the footage in securing the death sentence, claiming that it gave a rather misleading portrayal of Hall and his true feelings in a situation where Hall was just playing along with a comedian and nothing more. Even more significant, Hall’s lawyers have also hitched their wagons to the Sixth Amendment’s right to counsel provision, claiming that the comedian’s interactions with Hall, which generated the footage, was permitted by the jail house authorities without the presence of Hall’s attorneys and was therefore unconstitutional.

So, now we are dealing with at least two main issues here: the right to counsel under the Sixth Amendment plus the question of whether the content of the footage was just a guy playing along with a comedian or whether it was something else more sinister, as in, somebody who showed no remorse for murder.  First, the Sixth Amendment. Under the law here, anyone charged with a crime is given the right to have their lawyer present during what is known as “critical stages” of the process, meaning that this right usually comes into being even before things start happening inside the courtroom in front of a jury and so on. To explain it more simply, once a guy is arrested by the cops and is informed that they have a right to a lawyer, most ordinary folks do understand that to be the beginning of the person’s journey through the criminal justice process, and that is therefore a “critical stage” of things. The basic idea here is to protect the person in custody against unfair oppression by the government authorities.

But our situation here with Jeff Ross and Gabriel Hall is rather interesting in one obvious way: most ordinary folks can also appreciate the fact that someone bantering with a comedian, even inside a jail house, stands on a rather different footing when it comes to the right to counsel than, say, someone being interrogated by a cop in the same situation. Unlike a comedian, a cop ain’t joking around with the guy in custody, rather he is usually trying to get information about a crime, something that could doom that guy at his trial. Well, let’s just say the difference in the two situations is pretty clear and this is where Hall’s legal team has a genuine problem when it comes to their big argument about the Sixth Amendment. And this is a heavy lift, for sure.

By comparison, the lawyers seem to have a less heavy lift when it comes to whether the footage shown to the jury reflected Hall’s true feelings, as in, remorse or no remorse for his crime, or if it was just a guy playing along with a comedian. Again, most ordinary folks would understand that a guy sitting down somewhere and doing a back and forth with someone he knows is a comedian probably isn’t expecting such information to land in front of a jury that is deciding his guilt or innocence let alone a jury that is deciding whether he should live or die.         

So far, the efforts of Hall’s lawyers to shoot down his death sentence have tanked on appeal before the Texas courts, and they have decided to seek another bite at the apple at the Supreme Court of the United States. Only time will tell if they’ll find success with this move. And it likely won’t be long before we see how the Supreme Court processes the subject of humor in the criminal justice system. And, of course, it’ll also give us a window into the high court’s own sense of humor.

**Editor’s Note: The new book “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!

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

On By carlunegbuIn FreeLeave a comment

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

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

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

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

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

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

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

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

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

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

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