Confronting Trump and Nixon: Comedy’s Changing Perspectives

In the wake of the January 6 Capitol attack few would dispute the assertion that Donald Trump is the most controversial president of our lifetime. Surely, he seems to bring out the very worst in his detractors: the mainstream media loathes him and he in turn famously berates them as “the enemy” of the American people. The comedy community makes a feast of trump jokes and, as some comedians have noted, the Trump jokes are literally writing themselves. To say the least, these jokes can be pretty tough stuff and are clearly intended to hurt mightily.

It is worth stating at this point that despite Trump’s departure from power, the current moment can still be fairly regarded as the Trump era, thanks to the continuing impact of the phenomenon of Trumpism in our cultural life.

The controversy of the Trump era recalls another president in America’s modern history: Richard Nixon. Aside from his frosty, adversarial relationship with the media, Nixon, in fact, created a so-called “enemies list” of people to be hunted down by the government; predictably, the list included not a few members of the media. Former Washington Post reporter Carl Bernstein calls the Nixon’s presidency a “criminal presidency.” Ultimately, Nixon was forced to resign the presidency in disgrace. Yet, it seems rather noteworthy that the comedy community of Nixon’s time did not go after him with anything resembling the venom and virulence with which Trump is assailed by comedians of his era. Question is, what accounts for the different reactions of the comedy community to the two uniquely controversial presidents?

America in the Nixon Era

As comedy legend Dick Cavett noted, the comedian [in that era] simply set out to think about an event and try to find some humor in it. A classic example can be seen in one of Cavett’s jokes about Watergate. In it, he cracked that the White House “plumbers” in trying to do their job of plugging leaks instead opened a Watergate. Speaking of his experience with Watergate, Cavett said, “I set out to do an entertaining talk show, never dreaming that I’ll get up to my neck in a national scandal.”

Cavett’s comments aptly capture the way comedy was done in the period before the contemporary era. Back then, comedy saw itself in a different role in society: it stayed in its own lane where the whole act was about making people laugh with whatever subjects would do the trick, whether the subjects were drawn from the political arena or elsewhere. Thus, comedians did not directly venture into the politics of the day to take sides in the political controversies of the moment. (Despite its apparent ideological bent, even the Smothers Brothers Comedy Hour, which many would consider the outlier in that era, hewed closely to the goal of provoking laughter albeit at Nixon’s expense. The show neither wore its politics on its sleeves nor betrayed a burning desire to help the political opposition.)

Perhaps there was a good reason that comedians opted for that approach: their audiences, somehow, seemed to want it that way. Consider, for instance, the Watergate scandal, the biggest disaster of the Nixon presidency. According to a 1973 article in The New York Times (“Watergate Comics Find the Joke Is on Them,” by Roy Reed, September 8, 1973), most comedy audiences across the country, with the exception of a few isolated spots like New York, did not find Watergate jokes all that funny. “Watergate just isn’t a laughing matter for most of the nation’s standup comedians,” began the article, which went on to note that, “even scarcer than anti-Nixon Watergate jokes at the clubs are pro-Nixon jokes. Indeed, an informal nightclub survey didn’t turn up one of them.” From all indications, it was indeed a different time in the culture: “When they subpoenaed the President, that’s not comedy,” said Ken Barry, a comedian from that time.

Enter Trump and the Muckrakers

In today’s divisive political climate, it is difficult to imagine a comedian expressing the sort of sentiment expressed above by the comedian in the Times article. The simple reason is that we now live in the era of “muckraking comedy”, an overtly political and weaponized comedy that is news-based but lacks the commitment to objectivity that news professionals feel obliged to practice. The essence of this genre of comedy, which has been growing for the past two decades, consists of holding a viewpoint and using the vehicle of comedy to advance that viewpoint. As comedian Bill Maher rightly observed about today’s comedy audiences, “they’re there more to clap for the opinion they already believe in than to laugh. That’s what changed,” he said, adding, “It became more important to cheer for your team than to actually have a laugh.”

To be sure, the old laughter-based comedy of Cavett’s generation of comedians still exists today. However, in contemporary pop culture and the political climate that surrounds it, such comedy, clearly, has taken a back seat to the far dominant and more appealing genre of muckraking comedy, which is what reels in the all-important ratings. Given Trump’s outsized impact on the news cycle and the intense loathing of the man by those on the left, any left-leaning comedian of any significance today can only ignore anti-Trump muckraking at his or her own career peril. For instance, during Trump’s time in power, NBC’s Jimmy Fallon was forced to confront this new reality in his late-night competition with CBS’s Stephen Colbert: thanks to anti-Trump muckraking, Colbert the new-kid-on-the block in late-night comedy did seize the late-night ratings crown from Fallon, for at least three consecutive seasons through 2018-2019, when Colbert snagged a hefty 3.82 million nightly viewers compared to 2.44 million for Fallon and 2.04 million for Kimmel, according to Nielsen data.

Fallon’s troubles began in September 2016 when he famously mussed Trump’s hair during the latter’s appearance on his show, a gesture interpreted by angry audiences as him “normalizing” Trump. Over the three – year period since then, Fallon’s audience numbers have plunged whereas Colbert’s have spiked. Needless to say, Fallon has since learned his lesson and dutifully joined the anti-Trump muckraking party as a matter of sheer self-preservation. Samantha Bee is another leading comedian of the muckraking era who has reaped the benefits of anti-Trump advocacy. Acknowledging the role of outrage in her comedy, Bee noted in an interview with Canadian TV journalist Rosemary Barton that in her comedy world she found that “people care about the world” and aren’t so interested in jokes about celebrity antics anymore.

Under the prevailing circumstances, hardly any left-leaning muckraking comedian today particularly cares to either hide the political undertones of their act or the fact that they’d be glad to take down the Trump presidency if they could. And sometimes, it can get downright personal, to boot. Case in point: Bill Maher’s New Rules segment about Trump’s supposed narcissism (See Real Time with Bill Maher episode of September 21, 2018). In the six-minute span of the segment, Maher lamented how narcissism has rendered the president a stupid person who considers himself infallible and is therefore unteachable and can never be corrected. He likened Trump’s brain to a cell phone with a full mailbox where one can call but cannot leave a message.

Though more noticeable on the political left, muckraking comedy, by its nature, is a phenomenon that also exists on the right of the political spectrum. Thus, the muckraking comedy era isn’t all anti-Trump. To the contrary, the former president does indeed have some powerful muckrakers in his corner. Fox’s Gutfeld! a classic muckraking show, which according to Nielsen data is the current late-night ratings king, is a case in point.

In a nutshell, Greg Gutfeld, the show’s eponymous host, is the political right’s answer to what happens on the political left, complete with both his unabashed defense of Trump and the (correspondingly) brutal sarcasm he heaps on Joe Biden’s person and presidency. He joined the late-night fray this past April.

Making sense of what may not seem to add up

If the foregoing makes anything clear, it is that comedy’s reaction to the Nixon and Trump presidencies is a tale of two eras in comedy, which at bottom reflect a change in cultural attitudes. This cultural shift, coinciding with the transition from traditional to muckraking comedy, explains why Nixon and Trump, both right leaning and uber-controversial politicians could have been treated so dramatically differently. Whereas the audiences of one era preferred that comedians not take partisan political positions, the audiences of the other era rather wanted to be entertained with jokes that espouse an ideological point of view and would reward comedians who play the part. In this scenario, one can see that Nixon avoided the assaults of muckraking comedy simply by having existed in an era when the phenomenon did not yet exist. Trump’s presidency, however, was quite literally born into the era of muckraking comedy and he simply couldn’t avoid its harsh spotlight if he tried.

Therefore, to those who wonder about the disparate treatment of two personalities-of-a kind by the comedy community, one simple observation should suffice: Were Nixon were in power today, it’s a safe bet that he’d probably be treated with as much hostility as Trump is facing. Not least because Nixon remains the only person ever to resign the presidency, thanks to the worst political scandal of modern America.

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

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.’

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 (http://comedyunderattack.com), 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” (http://fundanything.com/patent 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.

The ‘HOME IMPROVEMENT’ Lawsuit: A Messy Feud over a Billion-Dollar Comedy

home_improvement_photo2Judging by the numbers, the Tim Allen’s 1990s sitcom Home Improvement is a highly successful show which has brought in well over a billion dollars and tons of laughter to boot. But from the look of things, the laughter stopped a rather long time ago for the creators of the show, who claim they have been stiffed in the way the pot of gold is being divvied up. Now, they have invited the court to sort out the messy details of the billion-dollar situation between them and the owners of the show, Disney. The Tim Allen comedy ran on the ABC television network from between 1991-1999 and won a lot of awards in its heyday, including the Golden Globes and the Primetime Emmys. As with most successful shows of its kind, Home Improvement has been in syndication in many media markets around the country and abroad since it ended its remarkable run in 1999.

But first, here s the story…..

This past February, the producers (creators-writers) of the show and their various production companies, who claimed that they were profit participants on the show under an agreement, sued ABC’s parent Disney in Los Angeles for syndicating the show at  “well below the fair market value” and for not consulting with them on the business plans for the exploitation of the show. They alleged that Disney’s actions essentially denied them their fair share of the profits arising from the show.

The plaintiffs, Matt Williams, Carmen Finestra, Tam O’Shanter and David McFadzean also complain of lack of adequate accounting from Disney as well as an improper allocation of the distribution expenses and other charges to the show. In particular, the plaintiffs who were also the showrunners of the series during its eight seasons objected to the syndication of the show to CBS television in the New York market “for no monetary consideration.” In their lawsuit, the plaintiffs are seeking damages for breach of contract; breach of implied covenant of good faith and fair dealing; damages for unfair competition; appointment of a receiver as well as an injunction and an order for accounting.

As it turns out, Disney and the Home Improvement folks have been down this path before. In the mid-1990s, another lawsuit over the divvying up of money from the show was settled out of court but not before the dispute led to the creation of new rules about how studios and networks are allowed to make deals with one another when outside profit participants are involved on shows.

This case is no doubt an important one in the movie and TV industries where syndication deals and profit-sharing arrangements between networks/studios and producers and other collaborators are pretty commonplace. The decision in this case could create yet more rules about working arrangements among these entities.

But what are the odds of the plaintiffs winning their claims against Disney? Is the law on their side? Well, let’s see:

For starters, this entire case benefits greatly from the fact that there is actually a written agreement between the parties, which controls their relationship. That takes a lot of sweaty guesswork out of the picture. In particular, the breach of contract claim that exists in this case makes the existence of a written agreement here an even bigger deal for the simple reason that a breach of contract action by one party essentially accuses the other party of not fulfilling its promises under the agreement. Of course, because each situation is controlled by the details of the deal, it is obvious that how clearly the terms of the agreement are written and how much they adequately cover all the bases are always the key worries. Naturally, just like any other plaintiffs in a breach of contract case, the producers of the Home Improvement series must first show that they have performed all of their own obligations under the contract itself. At first blush, it looks like meeting this requirement should be a breeze for them, considering, well, that they produced the show successfully for all eight seasons.

The key piece of the breach of contract fight here is the producers’ claim that Disney failed to consult with them regarding their plans for the exploitation and distribution of the show. Well, since they are entitled to a share of profits from the show, it sure makes sense that they may bargain for this kind of provision in the contract, as they claim. (By the way, the producers claim in their lawsuit that the agreement entitled them to a whopping 75 percent of the net profits from the show, aside from their fees for writing and producing each episode of the show during its eight seasons.) Needless to say, if the producers of the show were not consulted at all by Disney before the distribution deals were made, then it’s an easy case of breach of their agreement. In such a case, the producers would indeed be entitled to the exact ‘injunction’ or order they have requested from the court. The point of the injunction in this case would be to command Disney not to proceed with any further distribution deals and arrangements without first consulting the producers, as provided for in the agreement.

But if they were consulted in any way at all, then it becomes a different ball game altogether. In this situation the quality of the consultation becomes the issue. For starters, by the producers’ own admission, just because they are consulted doesn’t give them the final say on exactly how Disney implements whatever distribution strategy it chooses to adopt or even what particular strategy Disney will choose to adopt. This also means that the right to consultation doesn’t give the producers the final say on exactly who Disney chooses to license the syndication rights to and, for that matter, how much.

Yet, they are entitled to be consulted and to have their input given its due and proper weight. That brings us to their other claim against Disney for breach of the covenant of good faith and fair dealing. This covenant is an ‘implied’ requirement that the courts read into every contract of this nature regardless of whether the parties have actually written the term into their agreement. In a situation where one profit participant, such as Disney in this case, controls the decision about who to deal with and how much money to charge in each situation, this requirement becomes even more important in order to protect the interest of the other profit participant who is not at the steering wheel of their joint enterprise. A big part of this requirement is that the party in charge of the decision must do his best to obtain at least a ‘fair market value’ for the product or service being sold. Of course, it would be great if he can obtain the highest possible value for the deal but strictly speaking, he is not required to do so. Understandably, this leeway is allowed to the deal maker mostly because of the unpredictable waters of business life plus the existence of other business considerations that often surrounds each business deal.

But a ‘fair market value’ is required in any event. In this case, one of the big questions is whether the syndication of the show to CBS for no money at all is an unfair undervaluation of the product, as the producers claim. If the series are syndicated in other markets for millions of dollars (as the producers claim), then Disney needs a good explanation for why it sold the series for no money in this particular market. And since the producers are already claiming that they were not consulted prior to the CBS deal, things likely won’t look good for Disney if they don’t have a good explanation for the deal, one that makes business sense.

As noted above, the producers have also tagged on a request for the appointment of a receiver. In layman’s language, a ‘receiver’ is someone appointed by the court to collect monies or other proceeds of an ongoing business operation. The cry for a receiver is pretty standard fare in situations like this one where a dispute has broken out between two parties both of whom are entitled to the profits from their joint enterprise. And when we have a situation where one of the two parties is the one controlling access to the monies coming in and is also the one allegedly refusing to render full accounting to the other party, the courts are usually more willing to listen attentively to the prayer for the appointment of a receiver; especially if the party seeking a receiver is also the one that is on the outside looking in, like the producers in this case. To be sure, this case seems like a suitable one that requires the services of a receiver in the meantime no matter who wins in the end.

Then there is the producers’ request for an accounting. Well, in a breach of contract situation, one can safely bet that someone asking for a receiver would also be seeking the remedy of accounting. As it happens, the two hands are often played together by the same person in these kinds of situation. In our case here, the producers are claiming that certain information has been withheld from them with respect to some ongoing accounting exercises and that in other cases they have been given no access at all to the books and records of the business, in violation of their rights under the agreement. From the look of things, it is difficult to imagine that the court will not assist them to get some accounting in this situation.

In the end, this lawsuit looks like a great candidate for an out-of-court settlement. Considering all the second guessing about whether Disney’s business deals makes sense and whether ‘fair market value’ has been obtained on the deals and whether expenses have been properly calculated and net profits correctly figured, it looks like matters are in a grey area here and that both sides are locked in a messy fight. The producers still have some heavy lifting to do in this case. Yet, for a party like Disney, it won’t be a good idea to let this thing just drag on and, worse, to have the court poring over its ledgers and other business papers, looking for needles in haystacks. That kind of distraction is hardly good for business, especially with a highly successful show that is still in profitable syndication. Long story short, it would be smarter in this situation for the two sides to divide the big money between themselves than to let the court do that for them with the blunt instrument of a court order.

*****Author’s Note****

The BooK Release Party for “Comedy Under Attack: The Golden Age and The Headwinds” is scheduled for Friday, November 15 at the PIT [Peoples Improv  Theater], 123 East 24th Street, New York City. Showtime is 11 p.m. The party will feature a night of stand-up comedy emceed by comedian Dean Masello of Laugh Strong Comedy, plus a panel discussion/Q&A moderated by book author Carl Unegbu, plus book signings. All are invited. Mark your calendars!

Contact: thepit-nyc.com/steve gabe (908) 723-3491/carl unegbu (646) 337-0746

ADAM CAROLLA- Juggling Comedy, Business and Friendship in Court

adam_carolla_photo6Funnyman Adam Carolla has quite a situation on his hands these days. And he does have some court dates coming up where he’ll be sorting out a few money matters with some old friends. It all comes back to the whole idea that doing business with other folks is never an easy thing and there is no guarantee that things would get any easier just because those other folks happen to be a guy’s close pals. Especially when business starts to boom and it comes time to divvy up the money. But first, here’s the story.

Around February 2009, Carolla’s radio gig the Adam Carolla Show was unexpectedly canceled by CBS. That was when Donny Misraje, a longtime close friend of Carolla’s suggested that the comedian roll his show over to a daily podcast as a way to “retain his avid fan base.”

According to Misraje, he and Carolla agreed to form a partnership business to pursue the new venture together. Under the oral agreement, Carolla was to hold a 60 % interest in the partnership, leaving 30% to Misraje and his wife Kathee, and another 10% to a guy named Sandy Ganz.

Misraeje claimed that by 2011 profits from the business had grown by a lot and that Carolla had begun shutting out all three of the other stakeholders from the operations of the business, including at one point, banning him (the producer) from being on site at the live show; he said that by the end of October 2011, Carolla had fired all three of them altogether and was refusing to honor the partnership agreement. In response, Misraje and his co-plaintiffs filed a lawsuit against Carolla, alleging breach of the partnership agreement plus a demand for accounting; the imposition of a constructive trust for their benefit and protection; and more.

The outcome of this case could provide some clarity for the benefit of the many comedians on the late-night TV shows, radio shows, podcasts and comedy specials, who work under various arrangements, promises and understandings with their buddies, whether as show sidekicks, as producers and as whatever else they’d like on their show.
The starting point in figuring out this case is to determine if there was indeed a partnership agreement between the parties, and if so, whether Carolla’s actions violated the terms of that partnership. If the answer is yes, then the next thing is to figure out what kind of remedy can be awarded in order to set things right.

Under the law, a partnership relationship arises when two or more people carry on business together for profit. And the agreement between any two or more people to form a partnership could either be written down in a document somewhere or it could be made orally as by word of mouth. Regardless of whether the agreement was written or oral, what must exist in every case is that each partner had the ‘intent’ to enter into the partnership with the other partners and that each of them ‘consented’ to become partners with one another. In short, the partners must be on the same page as to whether they want to form a partnership. Business lawyers often refer to this requirement as a ‘meeting of the minds’ between the folks involved. And this requirement is a pretty big deal because in the eyes of the law, each partner is an ‘agent’ of the other partners and his actions could bind the other partners whether they like it or not. Also, the partners are considered ‘co-owners’ of the business, meaning that all the partners have the right to participate in the management of the business and the sharing of its profits.

Therefore, as in every partnership case, the simple question here is whether Carolla intended to and consented to become partners with Misraje and the others. In other words, was there a ‘meeting of the minds’ between Carolla and the plaintiffs to form a partnership? Well, since we do not have a written agreement here, the intention and consent of the parties to become partners will have to be gathered from their actions at the time that their collaboration began, as well as the period before and after. These actions are usually referred to as ‘course of conduct’ and they are deemed to shed light on what the parties had in mind when they were interacting with one another.

Speaking of ‘course of conduct’ between the parties, the courts have over the years come up with certain ways of reading between the lines when attempting to figure out the intentions of folks involved in contract situations. And the process can sometimes be tricky because this surely ain’t a perfect science. Usually, when the evidence presented by both sides is sort of evenly balanced and could go either way, the courts come down in favor of the person who is denying that there is a partnership.

Here’s how it works: In one case that happened in New York, the first guy claimed that he gave a certain amount of money to the other guy in exchange for a 10% partnership stake in a restaurant business. (Both guys had been close pals for over 20 years at the time.) However, the other guy claimed that the money was a ‘loan’ rather than a ‘capital investment’ in the restaurant business. It was shown that the first guy who lived in Washington, DC, visited the restaurant just once or twice during the first year that it opened; that he gave out menus and business cards about the restaurant to other folks; and that he requested a friend of his in the media to feature the restaurant in a prominent magazine. The court concluded that these actions could have been the actions of a guy just trying to help his friend’s business rather than the actions of a person acting as a partner in a business. The court instead gave more weight to all the things (get this!) that he did not do. For instance, that he did not inquire about the leases; the contracts; the insurance; and the debts of the business. Also, he did not raise or discuss with his supposed partner any concerns about the profits or losses of the business; nor did he indicate in any of his loan applications or tax returns filed during that time period that he had acquired a partnership interest in the restaurant.

In the Carolla case, it is interesting that Misraje has taken pains to outline actions and steps that he and the other plaintiffs took to establish the intention and consent of all the parties to the partnership, including Carolla. As consideration for his stake in the business, Misraje (an experienced producer and editor) claims that he was to produce and manage the show. He also claims that he quit his entertainment industry job paying $231,000 annually in order to focus on his work at Carolla’s podcast, which carried no salary at all. During this time, he claimed that he and his family lived off a home equity line of credit on their property. In addition, Misraje said he kicked in $10,000 worth of personal equipment and supplies into the business operations of the podcast plus other sacrifices that he and his wife made. For his part, Carolla was to be the star of the comedy show, while Ganz would contribute his expertise in technology as consideration for his own share of the business. Obviously, if Misraje’s side can sustain these claims in court, they’ll likely have a far better day in court than the restaurant guy above.

Of course, if the court finds that there is no partnership relationship between the parties, then it is game over for the plaintiffs, meaning that Carolla wins. However, if the court finds that there is in fact a partnership situation between them, then the action shifts to the question of ‘remedies,’ where the court decides how to set matters right between the parties. And the courts can be pretty flexible when they are dealing with remedies. For starters, considering that each partner is entitled to participate both in management and profit sharing, for one partner to exclude a fellow partner from the operations of the business or to refuse to share profits with another partner is a violation of the partnership relationship and such an action would be a good cause to dissolve the partnership. In real life, what usually happens when partners can’t agree on the way forward is that the court will ‘order’ the partners not to shut out one another from the business and will appoint a ‘receiver’ to run the affairs of the business until the court proceedings are finished.

However, appointing a receiver may be more appropriate to situations where partners are running a restaurant than where they are running a podcast show. Unlike a restaurant and similar businesses, life in the entertainment world tends to be quite personal in nature and the show itself (including the buzz and the ratings) is all about the ‘star’ of the show. Therefore, as a practical matter, it will be unusual and pretty messy for the court, for instance, to order Carolla to allow Misraje to keep producing his show against his will. Plus, since receivers are folks who take over the business operations in the meantime from the partners, a receiver just won’t work in this situation since Carolla, as the star of the show, will still be front and center of the show. (The show simply cannot go on without him.) Long story short, receivers and injunctions just won’t cut it in our case here.

Of course, that doesn’t mean the end of the case. What will likely happen is that the court will impose a ‘constructive trust’ upon Carolla for the benefit of the other partners. In this case, the thing being held in ‘trust’ by Carolla will be the share of the profits and other assets of the partnership that rightfully belong to Misraje and the other co-owners. (A constructive trust situation arises when someone is deemed to be holding something for the benefit of another person and it usually arises when the courts want to prevent ‘unjust enrichment’ of one person at the expense of another in the interest of justice.) And with constructive trusts comes an obligation to render ‘accounting’ and to distribute the stuff that’s being held in trust.

In the end, this case has the makings of a horse race. And because the burden is on his opponents to prove that it was in fact a partnership arrangement that they had with him, rather than something else, the slight advantage is with Carolla at the early going. Yet, Misraje’s side clearly looks like they’ve come ready to play and, for sure, they’ve put a lot on the table so far. If the case is not ultimately settled, it’s tough to say just how the decision will come down. However it ends, though, it is pretty likely that the result of this case will be of genuine interest to folks in the comedy industry at large.

**Author’s Note: *** As promised, my new book “Comedy Under Attack…”, which covers political correctness and all the big issues in comedy today, is now available on amazon.com and in stores. As a service to comedy, please post your comments about the book on Amazon, Goodreads, Facebook, Twitter and other places, so we can drive this ‘hot debate’ even deeper into the public square……

ABC’s ‘FAMILY TOOLS’: the Money Fight on the Sidelines of a TV Comedy

family_tools_photo3When money and comedy mix, sometimes things can get way too funny. Like at ABC, where even though the station’s comedy Family Tools is still months away from its debut, one of its stars Leah Remini is already locked in a messy squabble with her handlers over her fat pay check from the show. And they have wasted no time in taking the fight to the courtroom in what is shaping up as a classic fight over ‘commissions’ between an agency and its talent.

Here’s what happened: In November 2011, Leah Remini, former star of the CBS sitcom King of Queens, signed on with the talent management company Collective to manage her career. One month earlier, in October 2011, Remini did enter into a talent ‘holding deal’ with ABC, which allowed the station to put her on a show at the network. Later on, the talent ‘holding deal’ led to a new gig for Remini as one of the stars of ABC’s upcoming comedy Family Tools, which premieres in May 2013. However, in October 2012, Remini fires her managers, claiming they didn’t do a good job and refuses to pay them any commissions arising from her work on Family Tools.

Following Remini’s action, the agency sued her in a Los Angeles court for breach of contract, quantum meruit and accounting. (So far, about ten episodes of the show have been shot ahead of its premiere. Remini reportedly gets paid about $100,000 per episode during the show’s first season with a four per cent pay raise for every new season in the future.)

For now, both sides have dug in their heels and have raised the decibel level of the war of words between them. Remini’s people have dismissed the lawsuit as ‘ridiculous’, claiming that she owes nothing to the agency and that in representing Remini the agency truly sucked at their job in various ways, including passing her through three different managers in just one year and giving her an agency manager who slept through important business meetings. For its part, Collective (the agency) claims that Remini’s ‘pattern and practice of failing to pay representatives speaks volumes’ and vows to get paid for its work. Collective explained that when it first came into the picture, it had agreed not to charge any ‘commissions’ on Remini’s fee under the ‘holding deal’ but that it would get paid a commission for any series that arose out of the ‘holding deal,’ such as Family Tools.

In any event, aside from all the flying brickbats and tough talk, this case is still just a breach of contract case. And like any other contract case, when the chips are down, the key question will be whether there was a valid contract and, if so, whether it was breached. And of course, whether the contract was breached would depend on what the terms of the contract were.

To explain a contract in layman’s terms, one can simply say that it is an agreement between two parties to do certain things or to refrain from doing certain things, with the clear understanding that if any of the parties fails to act or behave as agreed, the other party could enforce the agreement in court. And in order to have the ability to go court to enforce the promise, the agreement itself needs to be supported by something of ‘value’ either given up by one party or received by the other party. This something is called ‘consideration’. What this means is that not every promise made by one person to another gives rise to a contract at law. For instance, if I promise my buddy that I’ll give him a ride to Times Square for the ball drop on New Year’s Eve and I fail to show up, he can’t sue me for breach of contract because all I did was promise to do him a favor. He didn’t give me anything of ‘value’ to support that promise.

By the way, since our situation in this case also involves a talent ‘holding deal,’ perhaps we could use it to further explain the meaning of a valid contract. Usually, when an artist or entertainer signs a “holding deal” with a TV station, it’s really just a way for the station or studio to keep the artist on side and outside the reach of its rivals while the station figures out how or in what capacity it wants to put the artist to work. The artist is usually paid a ‘fee’ during the time period that the ‘holding deal’ is in place. In exchange for the fee, the talent in turn promises not to work for any of the station’s rivals during that period. In this scenario, it is obvious that the parties to the agreement are either ‘giving up’ or ‘receiving’ something of ‘value’ to support the promises they’ve made to each other.)

In our case here, we are dealing with an oral agreement between Remini and her managers. But this by itself is no problem because a contract can be in oral or written form, except in those specific situations where the law requires that contracts be in writing for them to be enforceable. However, the fact that this particular contract is merely an oral contract carries its own set of problems, especially since the matter is now in court and, even worse, the parties now disagree as to what the terms of the agreement were. Between all the maneuvering, hair splitting and clever talk involved in a court room trial, it can be an uphill battle to prove up the terms of an oral contract. In the real world, even when contracts are written down in a formal document (or instrument), lawyers can still disagree on the meaning of the words written into the agreement; so, one can only imagine how difficult things can get when nothing is written down at all and the parties are left with lawyers wrangling up a storm about what was promised during negotiations and what was not included. Tough stuff!

Courts have various techniques they use when it comes to finding out what the terms of an oral agreement are. And the courts can use whatever combination of these techniques it chooses in arriving at the answer. For instance, the court could look at how other parties in the industry have handled the payment of commissions in similar situations where a manager was hired during the time between the signing of a ‘holding deal’ and an actual contract, such as the one Remini received for Family Tools. Plus, the court could also look at the way the parties have conducted themselves during the contract to see if anything they have done so far could give any clues as to what they may have agreed to do at the time they entered into the oral agreement.

If, for instance, the court finds that there was in fact an agreement to pay commissions to Collective for its work, as the agency claims, then it won’t help Remini’s side too much to say that Collective employed folks who were sleeping on the job. That may be a good reason to terminate the contract, but the ‘obligation to pay’ on the contract is a whole different story. And this case really seems to be all about whether Remini has an obligation to pay at all, aside from whether the agency did a good job.

This brings us to the talk about quantum meruit, which is one of the claims that Collective is making against Remini. In a breach of contract case, the injured party usually makes a claim for damages against the party who breached the contract. But a quantum meruit case is a different animal altogether. It often comes up in situations where even though a regular contract does not exist between the parties, yet things have been done that make it only ‘fair’ that the party who did those things should be compensated. Thus, unlike in breach of contract situations where claims for damages are based on law, claims in quantum meruit are based instead on notions of equity and fair play.

What usually happens is that the person who performed services for the other person is awarded the ‘reasonable value’ of his or her services. And because there is no contract in existence, it is necessary to show that when the services were being performed, the person who received the benefit of the services knew that the services were being rendered with the expectation that the services would be paid for and were not being rendered for free. The rule here is that “equity would not assist a volunteer.” So, in plain language, the whole purpose of a quantum meruit claim is to prevent the ‘unjust enrichment’ of one party at the expense of the other party.

So, in the Remini case where there is actually a contract in existence, as both sides admit, a claim for quantum meruit does not exactly seem like the right fit. As it happens, this is mostly a case at law rather than at equity. Yet, considering the difficulties and uncertainties of proving up the terms of an oral agreement, if the court should end up deciding that the parties did not in fact establish a valid contract, then things may well end up on the quantum meruit route, considering that Collective did perform services under the working relationship that existed between both sides, prior to Remni’s firing of the agency.

In addition, Collective also has a claim for ‘accounting’ against Remini. Well, it is fair to simply note that ‘accounting’ claims are commonplace in situations like this one where money is being claimed in a lawsuit and only one side has access to all the records concerning the money. If Collective wins, the court will probably order an ‘accounting’ since Remini’s side has all the information here and she reportedly has not paid any commissions to Collective for any of the ten episodes she has already worked on.

So, what’s the big lesson from all this? And who wins? Well, long story short, an oral contract is simply not a good idea, especially in a situation where the parties intend or hope to collaborate on a long term basis, as with most talent management situations. Going to court on an oral agreement in any situation can be like walking through a minefield. Translation: Calling the odds of winning or losing a case such as this is a tough one and so much can happen as the case proceeds. The better option in situations like this one is to have a written agreement in a formal document.

And when doing so, it is always smarter to state the terms of the agreement in as much detail as possible in order to eliminate unnecessary disagreements. (By the way, most written agreements would probably have been able to avoid the big problems we have in Remini’s case by simply stating clearly when commissions would become due as between the ‘holding deal’ and Remini’s work on Family Tools.)

In the end, it has to be said that a well negotiated written agreement between folks who already are familiar with each other gives both parties a damn good opportunity to control the expectations from their working relationship. And this is the one big advantage of contracts in general, when compared to other areas of the law like torts, where total strangers could simply barge into someone’s life with some wrongful act and force that person to sue them. But oral contracts are a different story altogether and it is hard to see what, if any, advantages they bring to either side.

 

Please stay tuned for my upcoming book “Comedy Under Attack…”. Coming out soon!

SACHA BARON COHEN BLINKS: How Not to Make a Comedy Movie

Sacha Baron Cohen is a gifted comedy actor whose wacky sense of humor and the way he pushes the envelope in his movies often cracks up his audience big time. Except that his shenanigans can sometimes seriously rub people the wrong way, even some of the folks in his hit movies. And when that happens, the whole thing tends to come back to bite him in the neck, bringing with it some pretty bad PR and perhaps even costing him some money. His latest headache just came in from the Middle East and this time even complete outsiders like talk show host David Letterman got themselves drawn into the mud fight.

Well, here’s what happened: In 2010, a Palestinian grocer named Ayman Abu Aita who appeared in Cohen’s 2009 hit comedy Bruno sued Cohen and the producers of the movie for over $100 million, claiming that the movie falsely portrayed him as a member of the Palestinian terrorist group, the Al- Aqsa Martyrs’ Brigade. For his part, David Letterman who was also joined in Aita’s defamation lawsuit against Cohen was swept into the mess when Cohen appeared as a guest on Letterman’s CBS late night show and talked about his interview with a Palestinian terrorist.

In his defamation suit, filed in Washington, DC, Aita claimed that the false portrayal of him in the movie had damaged both his reputation and his business and had brought on death threats against him and his family
Aita claimed that when he gave an interview to Cohen during the shooting of the movie, he had thought he was speaking to an actual journalist about peace activism and that he did not even realize that he was in fact taking part in a Hollywood movie. Plus, Aita claimed that he did not sign a “release” authorizing Cohen to include his image in the movie. (In the movie, Cohen, a Cambridge –educated-Brit, played an Austrian journalist on a mission to promote peace in the Middle East.).

As it happens, Cohen is no stranger to this kind of lawsuit and had actually been down this path before: In late 2006, in the aftermath of his blockbuster comedy Borat, the filmmakers were sued by two fraternity guys from the University of South Carolina who alleged that they were duped into appearing in the movie in which they made racist and sexist comments which they would never have made otherwise. The frat boys, who appeared in the movie as the traveling companions of Cohen’s Borat character, claimed that the filmmakers had falsely told them that the movie would only be shown outside the United States instead.

But anyway, in the latest lawsuit filed against Cohen by somebody from his movies, an out-of-court settlement was reached this past July, when Cohen figured he’d cut his losses rather than confront these serious allegations in a courtroom. The case was reportedly “settled to the mutual satisfaction of all the parties,” though they would not disclose the terms of the deal. Despite the settlement, some have wondered what the final outcome might have been if Cohen would have chosen to stay and fight instead. Could Cohen have had any good legs to stand on in court? Well, not quite, considering the law of defamation in America.

To begin, as one might have guessed, Cohen and Letterman’s folks made the smart choice to turn the whole thing into a free speech fight, which obviously offered them their best shot at defending the case. Their lawyers claimed that Aita’s “name or likeness was used in a newsworthy context in a documentary-style movie that conveys matters of legitimate public interest”. (The same free speech line was used to defend Cohen’s comments on Letterman’s show.) Speaking of newsworthy matters of legitimate public interest, it is worth noting that the protection given to speech is so very wide when someone is sued for defamation. Yet, the right to speak freely concerning “matters of public interest” is not unlimited and the law draws the line on what is called “actual malice”. In layman’s terms, this mostly means that the person talking about free speech must show that he did not “in fact” know that he was “lying” when he said what he claims to have a free speech right to say. This is because the law of free speech is not meant to give anyone a license to “lie” or to deliberately peddle false information that damages other people’s reputation, which is what the law of defamation is all about preventing folks from doing.

And this is where Cohen would have some real trouble in making his defense. As it happens, when Aita appeared in the movie Bruno, the caption on the scene read “Terrorist Group Leader, Al- Aqsa Martyrs Brigade.” In the context of the scene, the description of Aita as a terrorist was presented as a statement of fact, not as an opinion. If the statement would have been presented instead as just an opinion, it would have made a big difference in Cohen’s favor, especially because the “Bruno” movie is a comedy and America’s First Amendment law is the comedian’s best friend.

But what happened here was different: In the Bruno movie, it was presented as a statement of fact that the man (Aita) was a member of a terrorist group. And from all indications, when the scene was added to the movie, Cohen and the producers obviously knew that it was not true, especially since they had no reliable or even any source of information that the man was in fact a terrorist. As a matter of fact, it turns out that Aita is actually a “Christian” who had nothing to do with the Islamic terrorist group that he was said to be a leader of. So, given how little proof the filmmakers had that Aita was indeed a terrorist, we very likely are dealing here with a false statement of fact that was knowingly put in the movie. This would qualify as an “actual malice” situation that would seriously damage Cohen’s chances of beating this defamation case on free speech grounds. Even if Aita were somebody in the public eye (such as a prominent national politician or an international celebrity), Cohen’s chances of winning this case on free speech grounds would still be pretty weak.

Aside from all the free speech talk, there is the claim by Aita that he did not sign a release which would have legally authorized Cohen and his team to include the man in their movie. If it is indeed true that Aita signed no release for the movie, then apparently his participation in the movie was obtained by deception. Cohen’s movie is a Hollywood product that is designed to make profits for the filmmakers and so there is a big difference between giving an interview to a journalist for a story about peace in the Middle East on the one hand and doing exactly the same thing as an actor participating in a Hollywood movie on the other hand. Using someone’s image or likeness for a profit-making venture without that person’s permission is something that would give such a person a right to sue for damages for misappropriation of their publicity rights.

In hindsight, it seems that Cohen’s decision not to obtain a signed release from Aita was a calculated move. The simple reason here is that a release agreement would probably have required Cohen’s team to tell Aita what role he was being used for in the movie. It is easy to guess that Aita likely would not have agreed to be portrayed in the movie as a Palestinian terrorist, even though this was so obviously how Cohen’s team wanted to use him in the movie.

In the end, it is fair to say that given the odds against him in the lawsuit it was probably smart thinking on Cohen’s part to quit the fight early. It wouldn’t have been a good case for someone in Cohen’s position and one can’t help but think of the whole case as a teachable moment in how not to make a comedy movie. Always better to let everyone in a comedy movie in on the joke and to have them on the same page. Otherwise, it can cost the filmmaker money and bring him bad PR. And maybe even put lives at risk in certain regions of the world where folks can actually get killed just because of what they say unlike here in America. Most folks would hope that comedy can do better than that.

(continues next month…….)

Conan’s NBC: No laughing matter for a funnyman

On Sunday, January 10, NBC made it official that it will cancel the 10 p.m. “Jay Leno Show” effective February 12, and move Leno over to an 11:35 p.m. time slot. For Conan O’Brien, NBC said it would offer the funnyman from Harvard the chance to move his “Tonight Show” back just a half hour from 11:35 p.m. to 12:05 a.m. to be followed by Jimmy Fallon’s “Late Show.” Before June 2009, Leno hosted the “Tonight Show” at 11:35 p.m.

Looking back now, the Leno-O’Brien shuffle by NBC Universal’s boss Jeff Zucker easily looks “boneheaded” because, with Leno gone, Letterman now rules the ratings at 11:35 p.m. in spite O’Brien’s best efforts. Plus, Leno himself is doing rather poorly at 10.p.m. and NBC languishes in fourth place among the major networks. This is now being called Late Night Crisis 2010. Disaster all around!

Yet, NBC will not get its wish: O’Brien is leaving in a foul mood with an unfriendly dig at NBC which he accuses of making him a scapegoat for its “terrible” prime time ratings. He also claims that starting the “Tonight Show” at 12:05 a.m. the next day amounts to a “destruction” of the show. O’Brien’s bold reaction somehow recalls an earlier bigger drama on the “Tonight Show” when Jack Paar stormed off the show in 1960 to protest alleged censorship from NBC folks.

When the dust settles, O’Brien will leave NBC with millions of dollars in his pocket. But some people have wondered what the situation would be if the funnyman had chosen to stay and fight instead. No easy answers here but there are options all around the table. Speaking of O’Brien’s options, a small oversight by his lawyers may have made all the difference, something that NBC has to be thankful for. And here it is: the language of the agreement did not include that O’Brien’s “Tonight Show” must be held at 11:35 p.m. And NBC has ended up using this oversight as an escape route. Recall that NBC told O’Brien he could carry his show intact over to 12:05 a.m.

But if that loophole didn’t exist, O’Brien’s legs would be stronger in a fight against NBC if he had chosen to stick around and mix it up with them. He could easily seek an injunction from a court to prevent NBC from moving Leno to 11:35 p.m. Plus, he could also request an order of specific performance to make NBC keep its word to leave him on at 11:35 p.m. Not having these options made O’Brien something of a sitting duck as NBC selfishly maneuvered to fix Zucker’s earlier big blunder in moving Leno into the 10 p.m. slot. Some have called this tactic Machiavellian.

To be sure, O’Brien isn’t the only one with options here. His contract with NBC reportedly contains what’s called a negative covenant which could allow NBC to keep him off any rival television networks during the time he was supposed to be working for NBC. Already, Zucker is said to be “threatening to ice him” if he walks away from NBC. All this is important because FOX is reportedly interested in hiring O’Brien to launch Fox’s own rival late night show.

But, aside from Fox’s interest in O’Brien, can NBC really enforce any agreement to keep O’Brien off late night television for even one day? Not likely, under the circumstances.

For starters, NBC has not dealt fairly and in good faith with O’Brien and the law requires a party complaining to come with “clean hands.” Plus, the courts would probably find such an action unreasonable since the law aims to protect both competition in the marketplace and a person’s right to earn a living. So, one can safely predict that if push comes to shove here, NBC will likely suffer the same fate that ABC endured in 1980 when ABC failed in its suit against CBS in trying to stop sportscaster Warner Wolf from jumping ship to CBS.

True, O’Brien has asked us not to “feel sorry” for him and considering all the big money he’s leaving with (about $45 million by some estimates), perhaps we shouldn’t. Yet we cannot help but wonder what could have been had the funnyman been in a good position to really take the fight to NBC.