JERRY SEINFELD: A comedian’s lesson from a defamation case

A few years ago, star comedian Jerry Seinfeld’s family spent quite a bit of time in court and with lawyers. First, his wife gets sued for plagiarizing (or copying) somebody else’s cookbook. Then Seinfeld himself gets sued for talking about the lawsuit filed against his wife when he appeared on David Letterman’s show. And it is the same person that is suing them the whole time. In the end, though, the Seinfelds got the last laugh: the wife beat back the lawsuit against her and then another court sided with Seinfeld in denying that he committed defamation against Missy Chase Lapine, the woman who had sued them.

Here’s what happened: Around 2007, Lapine sued Jessica Seinfeld (Jerry’s wife), for plagiarism, claiming that Seinfeld’s cookbook “Deceptively Delicious”, which dealt with sneaking pureed vegetables into kids’ foods was copied from her own cookbook “The Sneaky Chef.” The case ended up getting dismissed because the court said that the two books were different enough from each other and that sneaking pureed stuff into kids’ foods wasn’t such a brand new idea after all. (The back story here is that publisher HarperCollins rejected Lapine’s book twice before picking up Seinfeld’s own book and helping her promote it on Oprah’s show. The book later turned into a hit.) Afterwards, that same year, Seinfeld himself appeared on The Late Show with David Letterman and without mentioning Lapine by name, said some unflattering things about her, including using such words as “wacko”,” stalker” and “nut job”. At one point, Seinfeld had said: “We’re sorry that she’s angry and hysterical and because she’s a three-name woman. She has three names. And if you read history, many of the three-named people do become assassins. Mark David Chapman. And you know, James Earl Ray. That’s what concerns me.” Then Lapine followed that up with a defamation lawsuit against him, claiming that Seinfeld’s use of the words “wacko”, “stalker” “nut job” and “assassin” when referring to her during his appearance on The Late Show amounted to defamation.

Well, the court didn’t agree with her and Seinfeld’s folks celebrated their good day in court. “Today’s decision is a complete victory for Jerry, and also a victory for the First Amendment and the right of comedians to tell jokes,” said Orin Snyder, Seinfeld’s lawyer. The gloating of Seinfeld’s lawyer aside, the defamation part of the court battle is the one that offers up a few good lessons to comedians on just how much space the law allows them to swing their arms when talking about other folks.

For starters, “context” is a big deal in a defamation case, especially because a typical defamation case tries to make the point that somebody else’s false statement of fact had damaged the reputation of the person that is bringing the lawsuit. Since we are dealing with a statement of fact, it means that what the other person [the offender] said must be the kind of statement that can be shown to be true or false. If the statement is false, then the person making the statement is liable for defamation. But then again, a statement about somebody can either be a statement of fact or a statement of opinion. If the statement can be seen as a statement of opinion, then there is no defamation. And this is where the “context” (or in layman’s language the “circumstances”) makes all the difference.

And whenever the law looks at the “context” of the statement, it does not do so through the eyes (or point of view) of the person suing or even the person being sued. Rather it looks at the statement through the eyes of what is known as a “reasonable person” in the community, and this is usually someone who would be unbiased, owing to the fact that he is not involved with any of the parties in the case.

And when a comedian is being sued for something he said, the whole talk of “context” and the difference between “fact” and “opinion” becomes an even bigger deal. As one might expect, comedians, more than any other group of folks out there, would be likely to benefit from this kind of analysis. The simple reason is that comedians are jokesters trying to draw a laugh and most people understand them to be just trying to draw a laugh. And in Seinfeld’s case he obviously got the full benefit of being a comedian, and a well known one at that. In this controversy, everything was in a good place for Seinfeld: he was a comedian by profession; he was appearing on an entertainment show dominated by comedy and hosted by a well-known comedian and he was speaking before a late-night audience looking to be entertained, including those watching at home.

Now, how is a reasonable person supposed to look at statements made in such a “circumstance”? Well, the court applied the “context” test, and flat out said that no reasonable viewer “would have believed that Seinfeld’s statements were conveying facts about Lapine”. The court added that no viewer could have regarded Seinfeld’s statement as an accusation that Lapine was a would-be assassin or was in any way dangerous. Long story short, the court concluded that Seinfeld’s statement on the Late Show were simply statements of ‘opinion’ and not of ‘fact’.

Well, that was the end of the road for Lapine’s defamation claim and it offered yet another proof of how hard it is to make a defamation case stick against a comedian, thanks to the First Amendment and the right of free speech. But does it mean that somebody can’t win a defamation claim against a comedian? Simple answer here is that, as hard as it may be, and despite their advantages in defamation court, comedians can still be found liable for defamation because, just like other citizens, they can sometimes slip up on a banana peel. To be sure, the First Amendment does not give anyone the license to break the law. When it comes to defamation, the general rule is that a person is not allowed to murder another person’s reputation in jest. And here, comedians stand in the same shoes as everyone else.

And again, “context” or “circumstances” play a big role on the flip side, and we’re talking about the same “context” factor that often allows comedians to beat most defamation raps. Thus, when the context or circumstances of the statement make it look like the comedian is stating a “fact” about somebody else, then the comedian will be liable for defamation if that statement of fact happens to be “false” and also damages the other person’s reputation in the community. In such a case, just because the comedian accompanied the statement with a joke will not save him from being liable in defamation. So, the line will be crossed when the humor or joke is simply being used to mask or hide an attempt to injure somebody else’s reputation. To be clear, we are talking only about statements of facts here. And, by the way, if the statement of fact happens to be true, then the comedian or whoever made the statement will be protected from liability, just like in any other defamation case. And of course, as already noted above, when the statement is a matter of opinion, then the comedian will not be liable.

In Seinfeld’s case, looking at everything from the eyes of a reasonable person, the court simply didn’t buy the narrative that the comedian was making a statement of fact about Lapine or that he was expressing anything other than his own personal opinion about Lapine. None of those situations are enough to make him liable for defamation. Yet, just because a person was appearing on a comedy or entertainment talk show doesn’t necessarily mean that they won’t ever be found liable for defamation. They can still get in trouble for defamation, as happened in July last year in Australia when a comedian named Mick Molloy joked on a sports show that a married female politician had slept with a former football player. The court described the broadcast as an attack on a woman’s “self-respect and dignity” and rejected the defense that the “humorous context” of the show suggested that that the joke was not meant to be taken literally. The court then slapped a fine on the TV station for making the broadcast.

In the end, the real lesson from the Seinfeld case is that comedians are indeed allowed a lot of room for maneuver when it comes to defamation. And thanks to the First Amendment, that room is much larger in America than every place else. Yet, while comedians have wiggle room to say an awful lot about other folks, they don’t have the kind of room that allows them to say just about anything. A lot of room and un-limited room are two different things. In perspective, because Seinfeld as a celebrity comedian has the sort of media connections and pretty big microphone that Lapine did not have, maybe it was bad manners and a case of unfair play on his part to have knocked his adversary on the Late Show, a national forum where she had no opportunity to hit back at him. Perhaps some folks might even feel that he acted a little like a schoolyard bully toward her. Yet, fair or not, Seinfeld was still operating within the large room space available to comedians in the American public square. Long story short, what he did doesn’t amount to defamation in law.

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…….)

THE JAY LENO TRIANGLE: Comedy, Courtroom & Foreign Relations

Funnyman Jay Leno is back in court and we have seen this script before. Just last month, the Sikh religion found itself at the butt of Leno’s jokes and the Sikh faithful did not find the stuff amusing. So, early the next week, Randeep Dhillon, an Indian-American and a Sikh, filed a defamation lawsuit in Los Angeles against both Leno and NBC for allegedly ‘racist’ remarks that defamed the Sikh religion and injured his feelings and those of other Sikhs. Dhillon claimed that Leno’s remark exposed the Sikh religion to “hatred, contempt, ridicule and obloquy because it falsely portrayed the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh.” Overseas, folks were not amused by the joke either: the Indian foreign ministry strongly condemned the joke as “quite unfortunate and quite objectionable” and vowed to take up the matter with the U.S. State Department.

It all happened during a monologue segment on Leno’s “Tonight Show”, when the talk show host showed photos of the homes of Republican presidential candidates. When it came time to show multimillionaire Mitt Romey’s pricey vacation home in New Hampshire, Leno instead showed a photo of the sprawling and majestic Golden Temple, in Amritsar, India, the most revered temple in the Sikh religion. Though Leno reaped boisterous laughter from his late night audience he did hit a raw nerve and create ripples outside the world of comedy.

So, bingo! …there we go again: another late night guy, another monologue quip, another pissed off person and another lawsuit.

In America, the lawsuit itself has not been well received and has in fact been ridiculed by many, including Fox cable TV’s controversial Bill O’Reilly who in his trademark derisive manner described the lawsuit as “dopey”. One commentator, himself a lawyer, said the filing of the lawsuit was proof positive that there were indeed too many lawyers in America.

So, it turns out that the Americans and the Indians view both the joke and the lawsuit rather differently. But politics and cultural differences aside, does the lawsuit look like something that might have legs in the courtroom? Well, in America at least, it seems like Dhillon’s chances of winning his lawsuit may be quite close to zero.

For starters, suing somebody for defamation in America is a whole different ball of wax from suing that same person anywhere else. Especially a public figure like Leno and especially on a matter so connected to politics as the wealth of political candidates. And throw in the religion factor and the whole thing gets messy pretty fast. Plus, the man Leno is, of all things, a comedian, to boot. In these situations, the First Amendment comes across like an 800 pound gorilla sitting in the courtroom and making tough demands. At its heart, the First Amendment is all about promoting an atmosphere of “uninhibited, robust and wide open debate” about matters of public concern.

Considering that Leno is a comedian, the defamation lawsuit has two big strikes against it in a place like America. First, what Leno did in his monologue was an attempt to “parody” the economic background of candidates running for political office. For whatever it is worth, such a “satirical” treatment of current events usually gets a ton of protection from the First Amendment.

Also, Leno being a comedian, his remarks during his monologue were not understood as statements of fact but mere jokes by a comedian trying to get a laugh. Since in a defamation case the person filing the lawsuit is claiming that his reputation in the community has been damaged by the false statement made by the person he is suing, the “context” of the statement itself becomes quite important. And this is where it gets quite difficult for someone like Dhillon. Speaking of “context”, the monologue segment of “The Tonight Show” is clearly understood by most everyone in America as an occasion for light hearted jokes designed merely to make people laugh and no more.

This means that even those audience members at Leno’s show who had never seen or heard of the Golden Temple would have simply taken it that Leno was just making a joke about Romney’s wealth. Such an image, by itself and in association with Romney, would not have caused those audience members to hold the Sikh religion up for “hatred, contempt, ridicule and obloquy.” Plus, even setting aside the “context” of the statement for the moment, it is also fair to say that neither Dhillon himself nor any other person (whether they are Sikhs or otherwise) who truly knows the Golden Temple could have really thought that the place shown in the photo on Leno’s show was in fact Romney’s home.

Speaking of what claims Dhillon could make against Leno, perhaps in other circumstances, he might be able to sue for a tort called Intentional Infliction of Emotional Distress on the claim that the joke was “extremely outrageous” and thereby “intolerable in a civilized society.” Yet, in a place like America where comedy is a huge part of the pop culture, Dhillon’s big problem is that he’d have to actually demonstrate that the joke was both extremely outrageous and utterly intolerable in a society like America. Fat chance! And there’s always the First Amendment, still sitting in the courtroom.

Of the two strikes that are set against this case, the First Amendment hurdle is the bigger one. And as it happens, not even Romney himself could win this kind of lawsuit in an American court. Fact is, the protection for “satire” under the First Amendment is so broad that even pretty hurtful, unnecessary and outrageous remarks are protected. It is interesting that the Indian foreign ministry, in condemning Leno’s remarks, also added that “freedom does not mean hurting the sentiments of others.” Well, may be so, but in the American experience, it happens, apparently.

Yet, none of this stuff is really new to Americans. For example, thanks to the First Amendment, attacks on other people’s religions by both comedians and other folks are not punished by the law. If there is any surprise in this whole situation, it perhaps ought to be that Dhillon, an American himself, could indeed have expected to win this kind of lawsuit. This being America, the Catholic Church, for instance, or perhaps the Mormon religion for that matter, would not have thought it worth their time to file a defamation lawsuit against Leno if the image he had used on his show for Romney’s home would have been instead a Catholic Cathedral or some other iconic Mormon building.

Though such a depiction would obviously piss off those religious organizations and definitely rub them the wrong way, lawsuits in situations like that just don’t work out here in America, regardless of whether or not they should. One remarkable example comes to mind here. Not long ago, in the wake of the child sex abuse scandals that rocked the Catholic Church, comedian Louis CK put out a You Tube clip in which he accused the entire Catholic Church of existing “solely for the purposes of boy rape.” Ouch! Well, nobody thought to sue him. Say hello to the First Amendment in America!

As already noted, the case has pretty long odds of success and will most likely fail when push finally comes to shove in the courtroom. But before the courts weigh in, the foreign policy people have already given their short answer to the question in this case. In typical America-speak, the State Department has let it be known in an official statement that what Leno did was protected by the First Amendment. (Of course, the State Department also acknowledged the tensions that the joke has caused to the friendly relations between the U.S. and India.) It is only a matter of time before the courts tell Dhillon the same thing about the First Amendment.

In the end, this one seems like a total no-brainer. The way it is, diplomacy and foreign relations have their place but Leno is just a comedian trying to make people laugh on his show. And it is a safe bet that none of this entire hoopla will be slowing him down any time soon: If the stuff is funny, the funnyman will take his shot, diplomatic sensibilities and foreign relations notwithstanding. That’s just the way it is with comedy and, as they often like to say, “It’s nothing personal!”

JIMMY KIMMEL: Teaching the ‘rabbi’ a lesson

Jimmy Kimmel is a star of late night TV and his star is still rising. Next up, he’ll be hosting the White House Correspondent’s Dinner in April. So, no one can doubt Kimmel’s high profile in pop culture. But as a comedian he also gets into cheeky territory with stuff that really gives people the needle.  And of course, in situations like that, trouble is never too far from the door. All sorts of trouble, that is. But Kimmel is not the sort of guy who’s afraid of trouble and he pushes back hard when it comes. Just like he did recently this past December when he got the court to toss a lawsuit brought against him by somebody he made fun of on his show.

Here’s what happened: In the summer of 2010 basketball star LeBron James visited an orthodox Jewish rabbi named Yishayahu Yosef Pinto for spiritual guidance as he struggled to make a big decision on commercial endorsement deals. On an episode of his show in August 2010, Kimmel made a joke about the James –Pinto visit by showing a video clip of the event alongside a YouTube video of a rabbi named David Sondik, known on YouTube as the “Flying Rabbi.” The Sondik video was meshed with a video of Kimmel himself sitting in a car and talking to Sondik [the Flying Rabbi] who was standing at the window of Kimmel’s car and supposedly counseling Kimmel in incomprehensible sounds and wild manic gestures. Kimmel set up the joke as a way to communicate to his viewers that what LeBron James (who didn’t speak any Hebrew) did on his visit to Rabbi Pinto (who himself didn’t speak any English) made no more sense than what Kimmel himself had done with the Flying Rabbi.

For his part, Rabbi Sondik didn’t find the joke funny, so he sued both Kimmel and ABC seeking damages for defamation, invasion of right of publicity, misappropriation of likeness and for copyright infringement. Sondik claimed that by portraying his voice, picture and likeness as that of Rabbi Pinto he was made to “look foolish” and was cast as a “laughing stock.”

A win for Sondik could have a pretty major impact on how far comedians on late night TV could go in running any video clips as part of a joke on people and events in the society. This could present a classic “slippery slope” situation for comedians: it would mean that every time comedians employ that technique on their show – that is, meshing different images or splicing stuff together- as part of their monologue, they have to worry about whether they have crossed the line into the lawsuit zone where folks like Sondik might be waiting for them. Incidentally, this practice has become so well established as an aspect of late night TV satire that audiences have come to take it for granted on the Leno, Letterman, Conan and other shows.

But Sondik obviously ended up losing and so late night TV satire as we know it will go on. The reason Sondik lost his case is pretty much the same reason that most people would not even launch a lawsuit like that to begin with. And the court in this case made it crystal clear to him. The court basically said that the segment that Sondik was griping about was really just an attempt by Kimmel to make a satire of Lebron James’ meeting with Rabbi Pinto, an event that by itself was either ‘newsworthy or a matter of public interest’. And since Sondik’s lawsuit was also kind of heavy on the right of publicity and misappropriation of likeness stuff, the court shot down that angle by stating that the Kimmel video clip had not been meant for ‘commercial use’. The logic here is that newsworthy stuff and commercial stuff don’t usually run in the same stream.

Long story short, Kimmel ended up making this one a cakewalk. What this confirms yet again is just how very difficult it is to win against a comedian for something done in the way of a joke. For starters, pretty much everyone understands that a comedian is just making a joke and therefore is not dealing with matters of fact in the real world. In this very case, any average late night TV viewer who saw that particular video clip would likely not have thought that Kimmel in fact met with the Flying Rabbi the way that Lebron James met with Rabbi Pinto. In short, comedians do splice stuff together in a funny way just to make people laugh and folks do get the joke on that. Simple as that!

Considering the media buzz and speculations about LeBron James’ next career move in the NBA at the time of the meeting with Pinto, his decision to meet with Pinto was obviously both newsworthy and a matter of public interest. And such events are fair game for comedic gags. The way the court saw it, the meeting between James and Pinto was the main focus of the video clip by Kimmel rather than the Sondik bit in the clip. In this way of looking at it, it is obvious that not even LeBron James himself or Rabbi Pinto, for that matter, could have won a lawsuit against Kimmel for the video clip that Sondik sued about.

And speaking of matters of public interest, one might perhaps wonder whether it is fair that Sondik, who claims to be a private guy, should be dragged into a joke being made by Kimmel about public figures. To be sure, most folks would agree that LeBron James being a public figure should bear the consequences of any newsworthy events that his actions could generate. And for that matter, so should Rabbi Pinto for getting involved with a public figure like James in a newsworthy event. But can it not fairly be said that Sondik was simply dragged into the whole thing and, as he claims in is lawsuit, made a “laughing stock” of?

Maybe so. But in America, parody is so heavily protected by the First Amendment that sometimes even innocent bystanders (and private persons) are swept along by its broad brush. In those situations when it all gets a bit messy, alas, there is no First Amendment protection for anyone against being made into a “laughing stock” or being made to “look foolish.” Yet, the First Amendment has its place and most Americans probably feel grateful that it exists, despite its occasional rough edges.

And one more thing: Sondik claims that Kimmel did not obtain his permission prior to pulling his image from YouTube and making it a part of the video clip used in the joke. Well, one can only say that this claim is pretty idle and doesn’t seem to have a prayer in the law, because the copyright claim here belongs instead to YouTube, and not to Sondik. So, in making this particular claim, Sondik simply came across as just a busy body who is saying something that lies in the mouth of somebody else. Needless to say, this claim was a non-starter. But the law is hardly wrinkle-free: for instance, if you put the proprietors of YouTube in Sondik’s shoes, Kimmel could be looking at some real sticky stuff on his hands, unless he got all the authorizations he needed for his video clip. So, by giving voice to this copyright claim, Sondik may well be trying to wake up some sleeping dogs for a possible legal offensive against Kimmel.

But here’s the final picture: thanks to the protection of parody under the First Amendment, yet another comedian wins a shoving match against folks who don’t like his sense of humor.  And surely, the beat goes on for Jimmy Kimmel.

Stay tuned for next month’s installment!

The HANGOVER MOVIE: A Little Harvest of ‘Hangovers’

Talk about what’s in a name lately and perhaps The Hangover Part 2 movie easily jumps to mind. The movie has done better-than-expected business at the box office, yet it seems to remain ‘hung over’ with baggage from its past. Since releasing the movie last May, it has been as if every time the producers turn around, somebody is serving them court papers and demanding something. First, somebody sued them over Ed Harris’ face tattoo in the movie. Then another person sued them for injuries he claimed he suffered on the set of the movie. And now, yet another person is suing them, this time claiming that the producers stole the movie’s concept or idea from him and he is looking to yank the movie from the official records.

In the latest lawsuit filed last October, an aspiring filmmaker named Michael Alan Rubin is suing the makers of the movie [the Warner Bros. studio; the director and the writers] in federal court in California for copyright infringement and for defamation. Rubin, who is also suing his estranged wife, claims that that the makers of the movie stole the idea of the movie from his own movie treatment “Mickey and Kirin” which was based on his own life experiences. For his troubles, Rubin is taking no prisoners: he wants the certificate of copyright registration for the movie to be yanked plus damages and a court order banning any further sale or distribution of the movie.

Now, some background: In real life, Rubin claims that in 2007, he had gone to Japan to marry his Asian girlfriend in a traditional ceremony and then traveled with her on a honeymoon to Thailand and India. The couple then broke up on their honeymoon and Rubin ended up on the Indian vacation haven of Goa where he picked up acting gigs and worked on a movie treatment that detailed his life experiences with his wife.

So, that’s his case. For the moment Rubin’s lawsuit is not looking like such a heavy duty, high voltage case. Yet a win for him could mean that it gets pretty dicey going forward for any filmmakers to make movies based on events in somebody’s life even if the movies are billed as fiction. But he has to win first. And what are the odds that Rubin will in fact win? Well, not so great, it seems.

For starters, the defamation branch of his case looks weaker than the copyright side, which isn’t exactly a good horse to bet on either. Rubin’s defamation claim seems a pretty bold one: He claims that The Hangover Part 2 movie damaged his reputation by portraying him as a guy who would do drugs and have sex with a transsexual prostitute. To win his defamation claim, Rubin needs to show that the movie made a false statement of fact that damaged his reputation in the community. But his first real hurdle with this claim will be the effort to prove that he was indeed the person being portrayed in the movie. If he can’t hack it, then that’s the end of the road for his claim. And since the movie is billed as fiction and Rubin wasn’t mentioned by name or identified in any other way in the movie, he faces an uphill battle getting this job done. Things might have been easier for Rubin with his defamation claim against a Hollywood movie if both he and the story of his misadventures in Asia would have been well known to the public.

Then there’s the copyright side of his case. Quite simply, in order to win a copyright infringement case, the person filing the lawsuit has to show that the other person ‘copied’ an original work that belonged to him. In these situations, the courts look at the two works to see just how similar they are. And it is not enough to show that the second work has something in common with the first one. The person filing the lawsuit will lose if he cannot show that the similarities between the two works are more than just minor stuff. He’ll be sitting very pretty with his case if he can show that the similarities are rather striking in nature in such a way that it will be tough to chalk it all up to mere coincidence. Plus, he also has to show that the person he is suing had actual access to the first work, which would have given that person the opportunity to copy the work.

The kind of situation that would easily come to mind here is the old Letty Lynton case from the 1930s (which starred Joan Crawford) where a movie that was supposed to be based on a book ended up having more in common with a play of the same name than with the book itself. For instance, while the lead character in the book poisoned her male lover with arsenic, the same lead character in both the play and the movie itself (get this!) poisoned her male lover with the same very substance, which however wasn’t arsenic. Add to this the fact that the book, the play and the movie were all set in the same society and at the same period in time. With respect to access, it also happened that the filmmakers bought their right to base their movie on the book only after attempting but failing to buy the right to base the movie on the play.

In Rubin’s case, his life experiences obviously remain fair game for movie makers and book writers. But of course it’s a different story if he can manage to reduce his life experiences into something that can be protected by copyright, e.g. by putting it down in writing or in some other fixed form. So, is his so-called movie treatment “Mickey and Kirin” in a form where it can be protected by copyright? Maybe so! (Rubin claims he registered the thing with the Writers Guild of America.) And if so, did the filmmakers have access to the material? Here, Rubin claims that his ex-wife had ties to the filmmakers and would have been their source for the material. Can he prove that? By the way, assuming Rubin’s ex-wife simply told his life story to the filmmakers who then made it into a film, it seems like that wouldn’t be a copyright infringement issue.

If Rubin passes these gateway tests by answering these questions, then the court will get into the big question of the day, which is whether the second work (the Hangover movie) was copied from the earlier work (Rubin’s ‘Mickey and Kirin’ movie treatment). Is there a ‘striking’ similarity between the two? As already noted, minor stuff or matters of mere coincidence just won’t cut it. All these questions make for a tough road ahead for Rubin’s copyright claim. Funny thing is, the gateway questions may well be harder to crack than the big question itself.

In the end, it is clear that none of this stuff will be a cake walk for Rubin. And his odds of winning are pretty long.  So, luckily for the movie, this latest claim against the movie also seems to be weakest link in the chain of attacks so far against the movie. Yet, for all its box office success, it is interesting to see just how many “hangovers” are trailing the movie. At the rate things are going, who knows what next lawsuit just might be lurking around the corner for The Hangover Part 2. Talk about something living up to its name.

JOEL McHALE: A sweaty court battle with the angry dwarfs

Funnyman Joel McHale is a TV show host who pulls no punches when he takes the bat to celebrities and reality TV stars. But some of his targets are not the kinds of folks who would take his jibes lying low. Folks like Cara and Gibson Reynolds, a married dwarf couple from New Jersey who have attained celebrity status thanks to their adventures in the media spotlight.

Here’s what happened: In 2006, the Reynoldses gave an interview to the Associated Press (AP) for an article about whether it was right to allow parents to create “perfect” babies. The Reynolds couple claimed that they had the right to do so. “You cannot tell me that I cannot have a child who’s going to look like me,” they reportedly said.

Then enter McHale, the irreverent host of The Soup, an E! Entertainment TV weekly show, which runs clips of what it considers the most notable pop culture and TV moments of each week. In a 2009 clip on the show, McHale ran an ad for a fake reality show to be called Fertile Little Tattooed Pageant Parents Who Enjoy Baking.” Calling it the newest reality show, McHale showed the Associated Press photo of the Reynolds couple holding hands on their front porch, and went ahead to describe them as “happy dwarves…that can’t stop procreating.” Ouch! Then to illustrate his fake reality show, McHale altered the AP photo of the Reynolds couple to include images of babies with tattoos and wearing lingerie over their clothing.

The whole thing got the Reynoldses hopping mad and they responded by filing a lawsuit in Philadelphia against pretty much everyone connected with the show: McHale himself; the television channel E!; and Comcast, which owns E! In the lawsuit, the Reynolds couple sought more than $50,000 in damages for defamation and invasion of privacy. Mrs. Reynolds claimed that the piece, which allegedly also showed a woman purported to be her in labor in the bathroom giving birth, was so upsetting to her that she suffered “depression, insomnia, upset stomach, sleep interference and feelings of shame and degradation.”

For their part, the lawyers on McHale side are saying that the Reynolds’ clip was just a “parody” which is protected by the First Amendment and nothing more than that.

So, what exactly is the deal here? Is this defamation or parody? Well, it depends!

First off, thanks to the First Amendment, America is any comedian’s best home on earth and the reasons are obvious. Considering that Americans file more lawsuits than any other people on earth, the First Amendment clearly emerges as a comedian’s best friend and his shield against what is perhaps the most obvious threat he faces on his job: A defamation lawsuit by people who have been rubbed the wrong way by something the comedian has said or done. To be sure, rubbing people the wrong way just goes with the comedian’s territory. And as one might expect, McHale is already leaning so heavily on the First Amendment to save himself from the wrath of the Reynolds couple.

For better or worse, making fun of people the way McHale has done with the Reynolds couple just so happens to be something the law permits. Parody is one of the big things protected by the First Amendment. And whenever lawyers think about these kinds of situations, one of the more unforgettable cases they remember is the one where the Reverend Jerry Falwell sued the pornographer Larry Flynt and his Hustler magazine for $45 million over the cartoon piece where Falwell was portrayed as being drunk and having sex with his mother. Despite the reverend’s bitter objections, the Supreme Court in February 1988 said the cartoon piece was okay as a “parody” protected by the First Amendment. To be sure, the Supreme Court itself found the cartoon piece to be pretty offensive and this had to one of those cases where the Supreme Court literally held its nose with one hand and, metaphorically, used the free hand to wave across a smelly cargo that is stinking up the whole place. The simple reason is that the First Amendment sets for itself the goal of promoting a “free market place of ideas,” including, of course, humor. And we are talking mostly about the “public sphere” here.

So far, from the way the lawyers are talking in this case, a big part of this case will come down to whether the Reynoldses can be regarded as “public figures.” A person can become a public figure by seeking the limelight and becoming a celebrity like Kim Kardashian. The other way someone can become a public figure is maybe by sheer accident, the way it happened with Captain Chesley ‘Sully’ Sullenberger, that guy who saved so many lives by landing that troubled US Airways plane on the Hudson River in New York City back in January 2009. But by whichever way any person gets to become a public figure, there are consequences under the First Amendment, which include attracting the attention of saucy comedians and maybe receiving some pretty unwelcome ribbing from them.

In this very case, if the Reynolds couple can be regarded as “public figures,” then it will become harder for them to overcome the idea that what McHale did was just a parody of life and events in society. Quite simply, the more the Reynolds couple looks like public figures, the weaker their case becomes. One thing is for sure though: As far as public figures go, it may not be so easy to regard a couple like the Reynoldses as regular private citizens anymore, considering that they have made such rather gutsy remarks on a subject like creating “designer” babies, which seems kind of controversial, and perhaps even ahead of the times. To put it differently, it is maybe fair to say that because of their bold foray into the media arena, the Reynolds couple is no longer as anonymous as the grocery store owner on the street corner. Especially not when they got involved with a renowned media organization like the Associated Press on a matter of public interest and (get this!) accompanied by the couple’s photo. so, could it be said that the Reynoldses already injected themselves into the public space? Well, that’s a question for the court.

But wait, there is something else. The Reynoldses lawsuit also contains an invasion of privacy claim against McHale and his co-defendants. Yet, any claim that McHale and co. either invaded the seclusion of the Reynoldses (or perhaps that they exposed private facts about the Reynolds couple to the public) will most likely run into the same problem as the defamation claim. As it is, this is not like the typical invasion of privacy case such as the egregious ones where media organizations, without proper authorization, published photos of one woman nursing a child and of another laying nude in a bathtub. (In comparison to the nursing and bathtub photo cases, the Reynoldses’ situation is probably more like the photo of a couple kissing on a park bench.) Thus, to the contrary, it seems like the Reynoldses were already in the media limelight at the time McHale and his cohorts took a shot at them – McHale didn’t have to pull back any curtains in order to find the Reynoldses. So, it was certainly the prerogative of the Reynolds couple to be controversial but controversy also brings publicity and with it the attention of comedians.

Still, there is more to this case than just the folks involved and winning or losing this kind of case is something that would affect more than just the people who are in court here spending money on lawyers. For instance, if the Reynolds couple wins, it could become pretty dicey going forward to make jokes about what someone else is doing or saying for fear that the joke might rub that person the wrong way. In other words, “parody” as we now know it won’t be the same again. Needless to say, such a win will be an awesome thing for the Reynolds couple and other people who have been pissed of by jokes made by comedians.

But not so fast! The First Amendment stands in their way and their odds of winning seem rather long, at least longer than the odds of winning this debate by comedians like McHale. For starters, attempting to punish somebody for making a satire of actual events in the life of society isn’t exactly the best way for the First Amendment to promote a “free market place of ideas.” So, perhaps it happens that what the Reynolds couple is looking for in this lawsuit may not be the kind of thing that the First Amendment stands for or would be eager to approve. (Jerry Falwell learned this bitter lesson when he sued Larry Flynt.)

In the end, no matter how this case turns out for the Reynolds couple, one thing is for sure: Life in a free speech society like America can be a bitch sometimes, because of all the [offensive] things that the law allows other people to be able to say never get punished for. Yet, on the flip side, the Reynolds couple will have made their point at least: McHale and co. pissed them off and the couple dragged team McHale into court and made them sweat the stuff. Talk about “messing with the wrong marine!”

Jim Norton: Lessons from a “Chicken” defamation fight

Comedian Jim Norton and the Opie and Anthony show are two of a kind and when they come together, it may be wise to prepare oneself for a moment that may not be so ordinary. As it happens, Jim Norton is a stand-up comic who is known for pushing a tough line with foul-mouth remarks that draw blood; for its part, the Opie and Anthony radio show itself is a no-holds-barred arena. Their collaboration is something of a “perfect storm” for words that may hurt, sting and irritate; and a potential defamation lawsuit to boot. And that’s exactly what came to pass when Roy Den Hollander, a self styled “anti-feminist lawyer” sued Norton for defamation.

To be sure, Hollander is a gadfly Manhattan lawyer who is no stranger to controversy. He claimed he had called into the Opie and Anthony show in the hope of having an intelligent discussion of the merits of his lawsuit against Columbia University in which he was seeking to have the university abandon its women’s studies program. Earlier on, he had filed but lost a lawsuit in which he sought to have the nightclubs cancel their “Ladies Night” sessions.

But here’s what happened: During Hollander’s call-in participation on the Opie and Anthony show, hosted by Norton in 2009, an argument had broken out between the two. In the heat of their testy exchange, Norton berated Hollander as a “stupid” person and a “whore” who desired to have sex with a feathered fowl. According to Hollander, the most offensive remark made by Norton was the part where Norton said: “The chicken crossed the road because it thought that [Hollander] would try to f*ck it.” Ouch!

Not wanting to let things slide, Hollander filed a defamation lawsuit against Norton, seeking a half-million dollars in damages. In his suit, Hollander claimed that Norton’s crude remarks “held him up to public contempt and disgrace and caused him personal humiliation, mental anguish and suffering.”

For his part, Norton filed a motion asking the court to sanction Hollander for filing a baseless lawsuit and also for Hollander to pay Norton’s legal fees.
Sensing disaster ahead, Hollander decided to cut his losses and soon the parties settled the case, with each side agreeing to drop its demands against the other. Despite the settlement, Hollander insisted he would have won the case anyway, even though he said he believed the judge in the case was unsympathetic to his claim: “The judge wasn’t too favorable towards the case, so I decided to quit while I was ahead…I figured Norton’s learned his lesson and he won’t mouth off as much…you don’t always have to win a case to win a case.”

So, anyhow, the case settled. But could Hollander have won his defamation lawsuit against Norton? Not likely, and it was smart of him to quit when he did.

For starters, considering that their line of work requires comedians to make fun of other people and of the society itself, most people won’t be too surprised to find that a defamation lawsuit would be the most common occupational hazard for comedians. When a person sues somebody else for defamation, he pretty much would be claiming that his reputation in society has been injured or damaged by something the other person said about him. But to win his case, the person suing has to show that the person being sued made a “false statement of fact.” This means he cannot win his case if the statement is a statement of “opinion” rather than “fact.” Of course, if the statement happens to be “true,” then he cannot win, no matter how much damage the statement does to his reputation.

And since we are talking about damage to reputation in society, what matters in a defamation claim is what the society itself thinks: Would most reasonable people in society who hear the statement think of it as an expression of “fact” or just an “opinion”? As it happens, most people in society tend to understand comedians to be folks who make a “parody” of other people and the society itself just to draw a laugh. Certainly, not as people who are expressing facts. And it is mostly for this reason that suing a comedian for defamation is a pretty difficult business.

It is the rare occasion where a defamation lawsuit against a comedian succeeds – as happened this past July in Australia where the Channel Ten television station in Australia was fined for allowing a comedian named Mick Molloy to joke on the station’s football TV show Before the Game that a female politician named Nicole Cornes, who was married to a former football coach, had slept with a former football player. The Australian court accepted the claim that the broadcast was an attack on a woman’s “self-respect and dignity” and rejected the excuse that given the humorous context of the show, the joke was not meant to be taken literally. But that was Australia. In America, it would have been a more difficult case for her because of the First Amendment’s free speech provisions. Given that she is a politician, she probably would have been regarded as a “public official /public figure” and a tougher test called “actual malice” would have been applied to her case.

Long story short, one big lesson from the Norton case is that suing a comedian in defamation, as tempting as it may be, is no easy business, even with comedians as outrageous as Norton. But while that may be a lesson for everyday folks out there, most people would expect that somebody like Hollander, a controversial lawyer, who’s been around for a while with stuff like this, would already know that lesson. It is safe to say that Hollander’s defamation lawsuit against Norton is quite frivolous and as it happens, not a few people could see that: the judge in the case clearly saw that and Hollander himself knew that the judge saw that as well. The lawsuit was a boneheaded idea and Hollander could certainly have used his time better than that. Rather than teach Norton a lesson, as he claimed, it was Hollander himself, it seems, who had, quite surprisingly, forgotten an old lesson.

ANDY DICK the defendant: When a Comedian Goes off the Deep End

Comedian Andy Dick is in trouble again. Only this time, he is not being arrested by the cops but is being sued by someone who won’t take his antics lying down.

In early May, a Dallas man named Robert Tucker filed a lawsuit against Dick, his agent the United Talent Agency (UTA) and a Dallas club named Trees where Dick had a show this past December. In the lawsuit, Tucker seeks damages against Dick, UTA and Trees for offensive physical contact, intentional infliction of emotional distress and defamation by conduct, plus separate claims for negligence against UTA and Trees, and yet another claim in premises liability against Trees.

Now here’s what happened: In December 2010, Dick was performing at a club in Dallas, Texas, and was dressed in a red skirt (with no underwear beneath), plus a black top and a wig. Then, as Dick moved among the audience, Tucker asked him for an autograph. Dick then allegedly pulled up a bar stool beside Tucker and proceeded to force his genitals against the left side of Tucker’s face. The night before, Dick reportedly pulled the same act in another club in Austin, TX, when while standing onstage, he pulled another patron’s head into his groin.

The claim against Dick gives Tucker personally his best chance of winning something in this lawsuit. Under the law, an offensive physical contact or battery occurs when one person deliberately makes physical contact with another person without their consent and without lawful excuse. Also, an intentional infliction of emotional distress occurs where one person does a wrongful act so egregious and outrageous that it crosses the line of decency and what can be tolerated in a civilized society. Defamation by conduct occurs where one person’s conduct damages the other person’s reputation by creating the false impression that the other person who is suing is something that they are not or that they did something they did not in fact do. At the minimum it seems that Dick may well be liable for causing an offensive physical contact or battery. He didn’t have Tucker’s consent to do what he did to him and it is hard to see what lawful excuse he had for his actions. And Dick’s odds of beating the other claims against him are not so good.

But the case against UTA (his agent) and Trees (the club that booked him) is not so straightforward and is a harder case to win. Yet, this would mark the first time that anyone is trying to make the folks who do business with Dick accountable for his bad boy behavior.

Here, Plaintiff Tucker is trying to rope them in along with Dick under a theory called “vicarious liability” where one person is held liable for the actions of another. And Tucker is making a big deal of the fact both UTA and Trees knew of Dick’s bad boy behavior and that they still arranged shows for him just so they can make money off his bad behavior.

But the catch here is that “vicarious liability” claims usually cover master-servant relationships, as in employer or employee situations where the employee is subject to the “control” and direction of the employer. In this case, Dick as a comedian is more of an independent contractor doing business with UTA and Trees, and is not their employee.

Plus, when we are dealing with an intentional (mis)conduct, like the actions taken by Dick in this case, it is pretty hard to show that one person authorized another to commit a wrongful act (or “tort”), especially when the person who committed the wrongful act is not an employee but an independent contractor. Again, since Dick is not an employee of either UTA or Trees, and he is not subject to their control and direction in the way he did his job as a comedian, Tucker’s claim against them for negligence in choosing to work with Dick despite their knowing about his past behavior likely won’t get far.

But of all the claims against Dick’s business partners here, the case against Trees for premises liability is the one that in other circumstances might have some legs. This is because having paid money to watch the show, Tucker is an “invitee” to the club and Trees, as an occupier of land, owes him a duty to take steps to keep the premises safe for his visit. Yet, that duty does not cover all circumstances and would only extend to dangers that the club owner could actually prevent. This is because Trees is not an insurer for Tucker or anyone’s safety.

And regardless of what Trees may have known about Dick’s past behavior, it is hard to show that Trees could have foreseen and prevented Dick’s sudden and unexpected mistreatment of a member of the audience who had merely asked for his autograph. After all, it’s not as if we are not talking here about a loose overhead electric bulb falling onto Tucker’s head – quite simply, Dick is the problem here. Period!

In the end, the obvious lesson for comedians from this case is that as far as consequences go, there is a line between what they say and what they do – whether onstage or offstage. Translation: though they may not get in trouble for making offensive and outrageous remarks while doing a shtick onstage (thanks to the First Amendment), comedians – just like everybody else –  may yet get in trouble for acting out in physical ways.

The Stephen Grant Saga: Marrying A Comedian…and all its Stuff

British comedian Stephen Grant is a guy who wants to wash his family’s laundry in public regardless of their wish. But he is not the only comedian who would do something like that. Just across the pond, American comedian Sundra Croonquist frequently pissed off family members by some of what she said onstage in her shtick. (And when they sued her to shut her up, they lost.) Grant separated from his ex-wife, Anneliese Holland, in 2007 and while they were going through a messy divorce in 2009, his ex-wife’s lawyers tried to have him sign an undertaking that he would not talk about his marriage onstage. It was claimed that for Grant to include such material in his routine could cause “professional embarrassment” to his ex-wife. Grant and his lawyers rejected the proposal and it flopped.

Grant remained defiant throughout, claiming that he had “been absolutely dying to talk about the whole divorce on stage for over two years.” As if to give her a taste of things to come, Grant said his ex-wife is “so two-faced it took ages to upload Facebook pictures of her because I had to tag her twice.”
And Grant sees nothing wrong with talking about family in his shtick: “I think people who go out with comedians are well aware that is where a lot of material can come from.” (As it happens, Grant is not the only comedian who holds this view. Comedian Tammy Pescatelli, the rising star and suburban mom from Meadville, Pennsylvania, who recently launched her TV show, “A Stand-Up Mother,” said in a recent interview that a lot of her material comes from her life with family members. )

What may seem striking in this situation is how the efforts by members of the Grant and Croonquist families to stop the comedians failed. Perhaps even more striking than the failure of their family folks to stop the comedians is the fact that the family situations in both cases were starkly different: in Grant’s case the parties were going through a nasty divorce whereas in Croonquist’s case, the parties were still happily married and still are. Yet the comedians are allowed to push their stuff. But when can or will the law stop them?

Given the kind of work they do, a defamation lawsuit is the most obvious way to go after a comedian if one is pissed off at their shtick. A defamation lawsuit is the kind where one person is suing another person for causing injury or damage to their reputation in the society. For a comedian onstage, we would be talking about a type of defamation called “slander” which concerns spoken words that can damage somebody else’s reputation.

But the catch here is that the statement that is said to cause the damage to reputation must be the kind that lawyers call a “false statement of fact” which means two things: first, the statement has to actually state “facts” not “opinion” and this is where a lot of comedians can totally beat the lawsuit and get off. Because they are comedians doing a shtick onstage, it is so much easier for folks out there to assume they are just kidding around to get a laugh by through doing a “parody” of life in society. Most people watching a comedian perform onstage would not take him as “seriously” as they would take a Congressman speaking during a debate on the budget deficit. Second, even if the comedian made a statement of fact, he still wins if the statement is actually true.

Yet, there is a way to get a comedian to shut about matters going on at the home front. For example, a future spouse can get him to sign an undertaking to keep private matters private in the event of a divorce; maybe also during the marriage. This could take the form of a pre-nup, a confidentiality agreement or something similar. It was a smart move for Grant’s ex-wife to attempt to get him to sign the undertaking to not talk about the marriage in his shtick. The only problem is, she made her move too late at a time when she had no leverage to make him sign such a deal. Grant already had enough “goods” on her for his shtick. What is to stop an ex-husband from advancing his career by perhaps embarrassing his ex-wife who he claims cheated on him?

Comedians are not exactly like most other people, especially when it comes to things that might cause embarrassment to them or to others. That makes it a darn good idea for people who get involved with them to know what they are getting into.

If one believes Grant (and of course, Pescatelli), then there is little doubt that those who marry them as well as their other family members already do “get it” and may be okay with it. But the bottom line is: the comedians themselves have a job to do and a living to earn. And they get a lot of help from the law when anyone fights them.

Vince Vaughn’s “Couples Retreat”: The Bikini Model versus NBC Universal

Vince Vaughn
Vince Vaughn

Things can get complicated and courts and lawyers can come into the picture when a Hollywood movie features people who did not sign on as cast members. Just check with the comedy movie Couples Retreat starring Vince Vaughn.

In the movie, four couples embark on a vacation at a resort to work out the issues in their relationship. In one of the scenes, co-star Jon Favreau’s character pleasures himself while starring at a sexy bikini-clad bombshell featured in a brochure he was holding as he lay down on his back.

Now, the woman in the brochure has filed a $10 million dollar lawsuit against the moviemakers NBC Universal for defamation and invasion of privacy. The Manhattan woman Irina Krupnik, an ex-model who now works as a makeup artist had the photos taken about 10 years earlier when she was about 21 years old. She said the way she was portrayed in the movie in a “sexual and degrading context” caused her great humiliation, embarrassment and emotional distress.

So, that’s her lawsuit. Now, just what can she win? Well, only the court can decide whether she wins her case or not. But for the moment, here’s how it looks. Of the two claims, the defamation claim is more tricky for her because of the all the slippery nooks and crannies of defamation law, especially in America. First, we are not dealing with a statement of fact here, which is the real meat of a defamation action. We are not even dealing with a mere opinion. We are actually talking about just a photo. Plus, some smart defense lawyer could entangle the case in a debate about whether a fashion model should be treated as a “public figure” or a “private figure” and this can make a huge difference in the way it all ends.

But her chances are much better with respect to the privacy claim. Here, there is not much doubt that what NBC Universal did in the movie amounts to using her image and likeness for profit. But that’s not the end of the story. As it happened, she signed a general release after the photo was taken. Such agreements usually transfer to another person (usually the model’s agent or other handlers) the right to authorize other people to use the photo in the future. The question now is whether the terms of the general release covers the way the bikini photo was used in the Couple’s Retreat movie. And to answer this question, the court will have to look at the agreement itself.

Krupnik says she couldn’t have imagined at the time she signed the release that the photo would be used in a “quasi-pornographic context.” Well, maybe so but the court will not simply decide the case on the basis of what she alone was thinking at the time, even if she was being entirely honest.

If the plain language of the agreement does not clearly say that the photo could be used just the way NBC Universal used it in the movie, then the court will consider how folks in the modeling industry would have understood the language used in the release at the time she signed it. This is called “trade usage and custom.”

At the moment, it is not yet clear how NBC Universal got its hands on the photo it used in the movie. But if, for instance, the moviemaker got a license to use the photo from perhaps Krupnik’s agent or somebody else with the power to license the use of the photo to them, then they would be in a much stronger position in the lawsuit. Needless to say, the actions of an artist’s agent may sometimes make all the difference as happened when singer Debra Laws lost her case against Sony Music Entertainment in 2006 because her agent granted a license to the recording company to use a sampling of her song on a different song performed by Jennifer Lopez and LL Cool J.

However, there are things Krupnik could have done early on to put herself in a great position overall. For instance, she could have simply retained her copyright in the photo. But she apparently lost that power when she signed the release. Also, she could have quite simply signed another agreement specifically giving her full control over the licensing of the photo to any interested users. Now, it is all a matter for the court.