The Brave New World of Muckraking Comedy

By Carl Unegbu and Ron Simon

These crazy times have demanded a new brand of comedy. With the news more insane than any joke a comedian can devise, this new comedy has partnered with journalism. Once facts were facts and jokes were jokes. But the two have merged with comedians now wanting to change hearts and minds and not just release a guffaw. This is comedy with a Pulitzer purpose, as the New York Times recently noticed. Funny is no longer funny, as Sid Caesar would say. Funny now investigates and persuades, with the hopes of knowing laughter too.

Comedy interacts with Journalism. Murrow meets Mirth. It has been developing over twenty years, but has reached its apex with Last Week Tonight with John Oliver. We like to call this new humor, muckraking comedy. Back at the turn of the twentieth century citizens were prompted to act because of so-called muckraking reporters, who scoured the filth to discover the truth for its readers. Our leading comedians now get dirty with the transgressions of politics and culture to bring some type of cleansing illumination to its audience. Laughter is the first step of the way to action and enlightenment. You might remember Upton Sinclair from school; his novels prompted legislation in Congress. Now you can see an electronic version of The Jungle nightly with such comedy muckrakers Trevor Noah and Stephen Colbert.

Political Jokes Then and Now

Yes, there have political jokesters like Bob Hope and Johnny Carson. But they just wanted to release tension and basically affirm the status quo. Take this classic joke by Hope in the sixties: “President Kennedy is just winding up a nonpolitical tour of the 11 states he lost in the last election. He wanted to see how they’re getting along without federal aid.” Kennedy could be any politician. Funny to all sides, but ultimately harmless.

Oliver wants more. He posits: “Is anything about Trump funny anymore? I don’t know. Somehow the world’s most objectively laughable human has become a comedy graveyard where laughter goes to die.” Oliver recognizes that good old-fashioned inclusive humor is now hopelessly dead. The comic arrows must now be laced with some sort of poison. The world and its leaders are muck and your mission after the laughter is to change it.

Creating Muckraking Comedy

Well, this new muckraking comedy has transformed the process of creating jokes. If you are going to attack, you have to ensure that your jokes are as accurate and factual as anything in the New York Times. Comedy staffs now feature journalists and fact-checkers, reviewing every word to affirm it is true and factual, as well as funny. Lawyers also assiduously review punch lines to ascertain any possibility of defamation. The danger of muckraking comedy is that your targets will always be out to get you. Not to outwit you, just sue you.

Most people credit Jon Stewart as the trailblazer of this phenomenon in comedy thanks to his revolutionizing Comedy Central’ s The Daily Show. However, this new genre seems to have attained maturity at the hands of John Oliver in the weekly production of his own show HBO’s Last Week Tonight with John Oliver. Taking advantage of the weekly intervals between his shows and the absence of in-studio guests, Oliver, an alum of Daily Show and a protégé of Jon Stewart, is able to do a deep dive into an individual issue each week. Investigative reporting with savage laughs.

Oliver Takes on the Coal Industry

In this award-winning report on the coal industry, Oliver follows the journalistic principles of the muckrakers of old. He begins generally with the Trump Administration’s relationship with the coal industry. He then specially zeroes in on the safety practices of Murray Energy and the fatal collapse of the company’s mine in Utah in 2007. The piece was a smart indictment of the coal industry, worthy of Upton Sinclair, but with a large talking squirrel. His satire led to a defamation lawsuit by the company’s boss Robert Murray, which was ultimately dismissed by the court. Think how much research and comedy writing went into this piece, seamlessly intermingled.

We plan to explore ramifications of this radical muckraking comedy in future blogs. But first we want to understand the roots of the phenomenon. We had a conversation with one of its unsung heroes, Daniel Radosh. Radosh was a journalist for such publications as Spy before he became a writer for the Daily Show hosted by Jon Stewart and then Trevor Noah. Here he explains how journalism is injected into the satire, as well as the comedic differences between Stewart and Noah.

Now journalists play a very crucial role, something that Radosh considers a big legacy of Jon Stewart’s writing staff. As he puts it, “The Daily Show’s DNA” is becoming widely adopted as research and fact checking become commonplace in satirical writers’ rooms, the definition of muckraking comedy.

*This article was originally published in Medium, under Paley Matters. The co-author Ron Simon is curator of television and radio at The Paley Center for Media. Simon has been an associate adjunct professor at Columbia University and New York University, as well as a former chair of the Peabody Awards jury.

*For more interesting information about humor at large, visit Feedspot for the Top 100 Humor Blogs on the web. (https://blog.feedspot.com/humor_blogs/)

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. Please keep reading!

BEING LIKE LOUIS CK: The Modern Comedian, Fame, Fortune and the Law

Louis_CK_photo4Comedy today is at a ‘golden age’ and Louis CK is one of the greatest beneficiaries of this new age in comedy, if not perhaps the greatest beneficiary himself. So says the new book “Comedy Under Attack: The Golden Age and the Headwinds.” And Louis doesn’t shy away from acknowledging his good fortune: “The amount I get paid by these promoters is crazy…I could make $100,000 in a night,” he said about two years ago to Maxim magazine. Aside from the big fees he commands when he actually performs his act, Louis CK can also rake in a ton of money from just his massive fame alone. This is what would happen when he, say, endorses a product or licenses other folks to use his name for whatever it can fetch them. And the picture gets even more rosy thanks to the way the law has changed over the past 30 or so years. This means that even after he passes away, the party continues: His daughters or whoever controls his estate can still keep using his fame to make money as if the guy’s still around.

But can anything go wrong with this enviable picture of a gravy train? For instance, suppose folks who are not connected to Louis CK and who do not have his blessing want to get in on the money action anyway by trading on the comedian’s fame, can Louis CK stop such guys? (You can term these guys ‘freeloaders,’ if you like.) Or if he’s no longer around, can his “heirs and assigns” (you know, his kids and other folks to whom he may have given the right to control the use of his fame) stop the freeloaders? Well, the short answer is that, thanks to the ‘free speech’ clause of the First Amendment, these freeloaders can get away with it, if they are smart enough in the way they go about it. Of course, with things like this, the devil is in the details. And the real headache for everyone involved is that we’re not talking about a black-and-white situation by any means.

To be sure, everything we’ve already said above plus whatever we will say below on this subject applies to Louis CK as equally as it does to each of today’s successful or famous comedians.

For starters, the ability of a famous person (or celebrity) to control the use of his name or fame by choosing when to endorse products or to grant licenses to others is called the “right of publicity”. And here we’re dealing with things like the use of the famous person’s name, photo, voice, signature, likeness and anything else about that person’s life that has ‘commercial value’. We usually encounter this right of publicity power when dealing, for instance, with the use of a person’s name in connection with an ad for a product or a service. As part of the celebrity’s control over his publicity package, he can, if he wishes to do so, give or transfer this right to somebody else by way of a contract. In that case, folks who try to mess with this right of publicity will have to answer to the new guy who acquired the right under the contract. In short, the right of publicity is usually so personal to the guy who owns it that if we were talking about goods and services or, let’s say creative works like books and movies, we’ll be using terms like ‘trademark’ and ‘copyright’ instead. Of course, when it comes to the right of publicity, we are dealing with the ‘identity’ of a ‘person’ rather than a ‘thing’, but the very idea of owning something with ‘commercial value’ is the same in the right of publicity situation as it is with the trademark and copyright situations.

There are a number of ways in which a famous person’s right of publicity could be violated by somebody else. The easiest situation is where someone, for instance, uses Louis CK’s name in a product ad without his permission. That obviously would be a violation of his right of publicity and this is something that any bloke on the street could easily understand. Same goes for attaching the man’s name to a comedy show or a music concert that he has no connection with, in hopes of boosting ticket sales from doing so. By the way, it is worth noting that these are the kinds of situations that originally led to the creation of the right of publicity in the first place. In other areas outside comedy, the right of publicity is taken no less seriously: For instance, when someone tried to sell a plastic bust of Martin Luther King, Jr., his family won a lawsuit to put the kibosh to that move. Also, the TV personality Vanna White from Wheel of Fortune was able to stop an ad that mimicked her actions by using a robot wearing a blond wig to turn block letters on a game board. To bring the matter closer home to comedy, somebody who goes out there today, for instance, to use the line “Here’s Johnny,” which evokes “The Tonight Show” with Johnny Carson” will probably be shot down for wrongfully appropriating or taking something of value from Johnny Carson.

In the real world, when somebody violates a famous person’s right of publicity, the usual remedy is a lawsuit that seeks damages and more. The famous person could, for instance, ask for an accounting of the money or profits made from the unauthorized use of his or her name. The court could also hit the offender with an order of punitive damages, attorney’s fees, injunction and more.

Speaking of how courts handle situations where it is alleged that a famous person’s right of publicity has been violated by somebody else, the one case that stands out as a good example is the 2001 case involving The Three Stooges, who were slapstick comedy legends from the 1950s and 1960s. In that case, a California artist reproduced charcoal sketches of the Stooges trio (Moe, Larry and Curly) on lithographs and T-shirts and then offered the drawings for sale to the public. The children of The Three Stooges team then sued the artist for a violation of the right of publicity of the Stooges trio, all of whom had died a long time ago. The court agreed with the children and rejected the artist’s claim that he was exercising his free speech rights under the First Amendment.

In essence, the court said that because the artist’s drawings did not make any kind of ‘creative contribution’ to the likeness of the trio, it just was not the kind of expression that the First Amendment lives to protect. In other words, since the drawings did not add anything new or fresh to the image of the three men, there was therefore no message of any sort in there, which could have been regarded as some kind of ‘expression’ of his free speech rights. As the court saw it, the drawing made by the artist (Gary Saderup) lacked any real creativity and was therefore just a flat-out use of the image or likeness of famous people to make money. Well, it is probably not such a bad idea to note here that although it may not be immediately obvious, there is actually a certain downside to the way the court handled this case: Thanks to this kind of approach, the judges are now the guys deciding what is art and what isn’t art as well as what is creative enough to qualify for free speech protection and what isn’t. Talk about a fuzzy picture and a situation where it is hard to gauge which way the wind is blowing.

Yet, that’s the law here and it is what it is. Incidentally, the way the court decided the Stooges case also answers the question posed above regarding when other folks are allowed to benefit from a celebrity’s fame without his permission. To put the matter in layman’s terms, one can say that if the material in question is ‘creative’ enough that it can somehow be viewed as containing a ‘message’, then chances are that it will be regarded as an ‘expression’ which is protected by the free speech clause of the First Amendment. For instance, if the artist’s drawing in The Three Stooges case would have been presented in a way that perhaps made fun of the three slapstick comics rather than simply reproducing their likeness and offering it for sale, the court likely would have accepted it as a ‘parody,’ which is a form of expression protected under the free speech clause.

Also, it is important to note here, that contrary to a common misconception by many, the fact that a piece of art bearing the likeness of a famous person is offered for sale to the public or even that it is mass produced in several copies does not necessarily mean that the work is not a valid expression of free speech rights. Of course, we all know that somebody who is mass producing copies of an image and offering them for sale is in it for the money. Yet, thanks to the free speech law, he is allowed to do so as long as he is smart and creative enough to give the thing the appearance of some kind of a message. It is said that celebrities have such a large role in peoples’ lives and mean different things to different folks that making use of celebrity images in different ‘creative’ ways is an important form of expression for people. That’s why the courts have, for instance, allowed a painting of golfer Tiger Woods to be sold for money without Woods’ permission;  the courts have also allowed people to sell trading cards that made fun of famous baseball players, again without their permission. To digress a bit here, one might say that comedians, as people who make fun of things in creative ways, just might find this sort of opportunity to be rather interesting.

In the end, one can safely say that when it comes to fame and fortune, the law today offers a changed and still changing landscape to comedians and the wider entertainment community for that matter. The new landscape that has been emerging over the past one generation has two sides to it: thanks to the right of publicity, fame today has been made into something of a ‘property’ right which a celebrity comic can turn into big money at any time. And when he’s no longer around, the celebrity is now allowed to even pass it on his kids and family (just like his car or his house). Yet, thanks this time to the free speech clause of the First Amendment and the whole business about ‘creative expression’, the law also permits some pesky gray areas that make it possible for total strangers to literally ride the coattails of famous comics on their way to grabbing some fortune of their own without anybody’s permission. (Same situation applies to famous entertainers in other fields.)

So, can one say that contemporary superstar comics like Louis CK and others have a fair deal here under the changing law? You bet! Here’s the thing: first, to digress just a bit, it is true that because of the holes in the copyright law, comedy material (their most vital asset) isn’t really protected from joke thieves and so can be stolen rather easily. Yet, when they do hit the fame and are rolling in all the fortune that comes with fame, the law gives today’s comedians the kind of big time protection of their fame and fortune that their predecessors could only have dreamed of.