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!

“GLEE”! SEE YOU IN COURT: Trouble from Across the Pond

As success sometimes brings trouble, so goes the story of the Fox hit comedy GLEE, a big money show that is loved by so many on both sides of the Atlantic. This time the trouble is all in the show’s name itself: Glee. As it happens, not everyone thinks the hit musical show, which is a Golden Globe winner with about 11 sound track albums, plays by fair rules or should even be allowed to continue to run on TV. Across the pond, the British comedy company, Comic Enterprises, which runs a chain of music and comedy venues in Britain called the Glee Club, is suing Twentieth Century Fox for trademark infringement, claiming that the use of the name “Glee” by the American TV show is causing its customers to think there is a link between the British club and the American sitcom and that the confusion is damaging its business. Fox has responded to the British lawsuit with a counterclaim of its own, which is challenging the right of the British comedy company to own the “Glee” name.

In a typical trademark infringement case, the goal is pretty much to collect money from the person causing the offense and to shut down the business operation or practice altogether. And that is what makes this case such a big deal: Although Glee is now listed among the top ten digital US albums of all time, the British market is also a gold mine for the American hit show and its fortunes in Britain run into “tens of millions of pounds.” Last year’s concert tour by the cast of Glee sold more than 165,000 tickets in Britain. A win for the British comedy company will mean they could get paid millions of dollars plus an injunction or court order that would either yank the entire TV show or force its creators to change the show as we know it in the British market. Not a pretty thing!

With the stakes so high, what are the odds of Comic Enterprises winning the case? Not that bad, really! Well, let’s look at the law of trademark infringement. First of all, the whole point of having a “trademark”, whether it’s in the form of a word, a design or something else, is to identify the “source” of goods or services in the marketplace through differentiating one person’s goods or services from those of other suppliers. This is really about branding and avoiding “confusion” of one supplier’s product for those of other suppliers. And, as one might expect, suppliers who have built up a lot of “goodwill” in their product or service over the years would be especially keen to protect their trademark.

So, to win a trademark infringement case, the person bringing the claim has to actually show that they in fact own the “mark” in question, and that the other person or supplier who is getting sued is using that same mark or a mark so similar to it that it would likely cause confusion in the minds of consumers out there in the marketplace, and that the offending supplier is using the mark in carrying on a business and has no permission or valid defense for doing so.

So, for starters, if the people filing the suit cannot, in fact, show that they own the mark, then their claim would go nowhere and all the talk about customers getting confused or the other guy having no permission to use the mark won’t even matter at all. And this is the one factor that could make or break this case because Twentieth-Century Fox seems to have pushed that question to center court by claiming that Comic Enterprises does not own the “Glee” trademark. If Fox can make this claim stick, that would be the end of the road for their opponents. But can it?

To prove that someone owns a trademark, registration of the mark with the appropriate authorities is perhaps the best way to show ownership of the mark against everyone else. Here, Comic Enterprises reportedly registered the Glee name for its clubs since 1999 in the sectors of entertainment services and even merchandise in Britain. And for good measure, the British market is the “marketplace” that really counts in this lawsuit, not the American or any other market for that matter. Yet, registration alone simply doesn’t cut it because an opponent can still challenge the validity of the mark, just as Fox has done. To knock out their opponent’s claim, Fox is bringing the Oxford English Dictionary into court and checking out what it says about the word “Glee,” which is that a glee club is a society for singing part-songs. In layman’s language, Fox is pretty much saying that when the word “glee” is used, it is really more about people singing in a group, rather than something about a comedy club.

Well, the thing is, if somebody is in Fox’s position, registration of a trademark offers a huge advantage to an opponent in any trademark lawsuit and Fox here is merely trying to do its best in a pretty difficult situation. Now, here’s the backdrop to Fox’s argument: Since we are talking about trademarks as things that distinguish goods and services from one another, it then looks like words that merely describe or say what a business does may not be so great, after all, when it comes to distinguishing goods from one another, since technically, any other supplier in that line of business could claim a right to use that same word. With Fox, this means that folks who are “singing” could use the word “Glee” when referring to themselves.

Unless, of course, the other person looking to hang on to such a name can show that such a commonplace word like, say, “glee” or whatever else has, in the course of time, acquired what is called a “secondary meaning,” in that the average consumer in that particular market links or associates that particular word with that particular supplier.

Yet, the bigger odds in this lawsuit are that Fox will probably end up fighting its case on other grounds than just trying to say that the registration is not valid. But the good news for Fox is that they are not the people who have to win that particular argument in this lawsuit. Even if they lose it, the game is still not over just yet. For instance, Comic Enterprises still has to show that its customers are likely to be confused by associating the Fox TV show with the events of its business, the Glee Club. In other words, will the ordinary guy out there on the streets of Britain really think that the events of the Fox TV show and those of the Glee Club are coming to them from the same source? Proving that kind of stuff in the dust and smoke of a courtroom trial can get pretty dicey in the real world.

In the end, this case likely won’t be a walk in the park for either party. Given the high stakes in this case for Fox, such as the big money that its hit TV show is making in the British market, plus the risk of a negative court order, this is no laughing matter for Fox and it will likely do all it can to make this matter go away. Predictions are hard to make in these kinds of cases, but Fox clearly seems to get the memo already, that it may be in some real peril here and that this may not be the kind of case where it would want a foreign judge deciding on matters like the kinds of circumstances which could possibly confuse British consumers in the marketplace and even maybe what possible creative changes should be made to the show.

And there is already a danger signal from the courtroom: A judge in the case has warned that the TV show “at least in its current form would have to be taken off the air” if Fox loses. The way things are looking these days, the odds of an out-of-court settlement of this lawsuit have never been better.

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.