Tag: Lewis Black

Comedy Versus Free Speech: Deconstructing a Never-Ending Story

On By carlunegbuIn Other ControversiesLeave a comment

Comedy today is a long way from where it was just a generation or two ago considering that it has now migrated from the fringes to the center of the cultural conversation. But will it be allowed to enjoy its newfound fortune undisturbed, or will it become a target of detractors who rather resent the methods by which the art form exercises its right of free speech. At issue here is just how much leeway comedians are permitted when it comes to saying things that other people might find objectionable or simply intolerable. Especially if said objections are made on behalf of vulnerable demographics in the society, as in when comedians are perceived to be “punching down” at their targets. An obvious question here is whether the attempts to deter or push back at comedians when they punch down can legitimately be seen as a threat to the integrity or even the very survival of the art form itself.

 In contemporary society the pushback against the perceived excesses of comedians is embodied in the phenomenon of political correctness (PC) and its current enforcement tool cancel culture. Among the community of free societies this tension looks to be most stark in contemporary America, not least because of the unique constitutional protection for free speech under the First Amendment.

 Regarding the threat that PC and cancel culture pose to comedy, two schools of thought seem to have emerged over time, namely, those who perceive a threat to comedy and those who think the threat is rather exaggerated. And from all indications, neither side in this debate appear willing to blink anytime soon.  

 The first group is made up mostly of comedians, such as Lewis Black, who genuinely worry about the negative impact of cancel culture on the free speech rights of comedians. In an April 2021 appearance on the NewsNation program Banfield, Black said there was now a sense of Russia-style inquisition against people perceived to hold objectionable views, and he even mentioned the word McCarthyism. Finding it “odd that a lot of these things” nowadays originate from the left as opposed to the 1960s when they came from the right, he explained that the urge to cancel people was due to a “lot of us being alone in our various pods and judging other people in the midst of losing our minds.” Black also queried whether canceling people was so high on our list of priorities compared to other important things we need to do as a society. To demonstrate the extent of the problem, Black and the host Ashley Banfield even pointed out that someone these days could get in trouble not for making the joke but rather for merely laughing at it or not pushing back against a joke perceived to be objectionable.  (On this point, Banfield referenced the backlash in April 2021 against then New York mayoral candidate Andrew Yang for merely laughing and not pushing back at a joke about sexual violence in a video he appeared in.)   

The other view of the matter comes from those who do not really consider this situation a problem. People such as comedian/comedy writer Kliph Nesteroff, who in an October 2021 op-ed for the Seattle Times (“’Cancel Culture’ Has Always Been a Problem for Comedy”) acknowledged the cancel culture problem but then took the radically contrary view that “comedians have far more freedom today”, based on his observation that subject matter involving sex, religion, politics and profanity, no longer results in jail time nowadays unlike in the past decades going back to the turn of the last century when Mae West (1927), Lenny Bruce (1960s) and Richard Pryor (1974) got in hot water with the law for what they had said.

 So, which side is right on this important question? As one might have guessed, the answer is not so straightforward after all. For starters, it is obviously tempting to suppose that contemporary comedians have it so good since they no longer risk jail time for freely wandering into formerly prohibited areas where the taboo subjects reside, whether it be religion, sex, or politics.   Yet, staying out of jail does not necessarily resolve the free speech challenge for comedians, especially when viewed from a career perspective. Cancel culture today, it turns out, poses a pretty serious problem to the comedy art form not least because of its career-ending consequences. On a comparative basis, it seems like the occasional arrest for transgressing the lines of what is considered acceptable would be less of a problem for any comedian than the brutal banishment of the comedian from their workspaces, which is often the unfortunate result if not the pernicious goal of cancel culture, whenever it targets an erring comedian.  

 Still, despite the objection of most comedians, the disciplining impact of political correctness has been a net positive for comedy at least inasmuch as comedy can be legitimately perceived as a “product” being sold to contemporary society, a factor that inevitably forces comedians to do their market research.  Especially now that comedy has not only become a big-money enterprise, but people out there seem more willing than ever before to pay for a good laugh. We can certainly think of a scenario where what makes people laugh is the thing that they are willing to “buy” from the comedian merchant. If the consumers’ minds have been so conditioned by PC thinking that they do not find a joke funny and would rather not buy it, then tough luck for the merchant hawking the joke. In a free-market society with consumer autonomy, the comedian has no more right to sell the consumer a joke they consider unacceptable than the neighborhood grocer has the right to sell the same consumer a basket of stale fruits they may find unpalatable. PC thinking may be wrong and perhaps unfair to comedians, yet the customer is still king.  

 In the end, there is one thing both sides seem to agree on: the tension between comedy and free speech won’t be going away any time soon and striking a balance between these two things remains a necessity. Nesteroff says the “tug of war between censorship and free speech has been part of comedy for its entire existence…and will likely continue.” Black for his part says that “this is something that will work itself out as we evolve.”

While we await the striking of that all-important balance and its contours, it does not seem convincing to assert that political correctness and cancel culture will kill off comedy as an art form. What rather seems more likely to happen longer term is that these factors will shape or change how comedy is performed.  And it will be interesting to see how the new practice of comedy will be different from what we know today.     

Editor’s Note: The long-awaited book “Comedy Goes to Court: When People Stop Laughing and Start Fighting” is available now and on sale. Be sure to grab your own copy of this new Amazon bestseller today. Enjoy the read!

Lewis Black and his Posse: Comedians at the Copyright Barricades

On By carlunegbuIn Other ControversiesLeave a comment

When it comes to the business of copyrights and its protection, one could be forgiven for thinking of comedians as downstairs people compared to musicians. To be sure, this old problem also seems to be a matter of respect as well as money. Not surprisingly, the comedy community these days is trying to do something about it and this time it’s the streaming services that are in their crosshairs for allegedly using their work without paying compensation for it by way of licensing. Enter Lewis Black: the comedian is suing the streamer Pandora in a California federal court for $10 million in copyright infringement damages, for allegedly streaming about 68 of his works without a license. The works in question are comedy recordings.

Black is only the latest comedian to file this sort of claim against Pandora, which is already being sued by comedians like Andrew Dice Clay, Ron White and others, including the estates of George Carlin and Robin Williams.  A win in these lawsuits will be a huge development both in terms of expanding the landscape of available copyright protection and of course turning on an additional money tap for comedians. The other big streamer Spotify avoided similar litigation last year by moving pre-emptively to yank some comedy recording from its platform after it couldn’t agree terms with the copyright holders. In that dispute, Black himself, in a gesture of solidarity with the aggrieved comedians demanded that his own works be taken off Spotify platforms as well. 

But what is really at issue in these cases and can Black and his brethren in fact win?

For starters, it bears explaining that when a work is protected by copyright, it means that the said work is both an “original” creation of the copyright owner as well as a thing that is affixed to a “tangible medium.” The said copyright owner could be an artist, a designer, a writer and more.

Now, though the allegation of the comedians we’re dealing with here is that the streamers are basically not paying for the recording being streamed at all, the question that must ultimately be resolved when it comes time to pay is exactly what particular elements of the comedy “work” should be paid for under a license. In other words, exactly what contents of the work are being licensed by the streamers? (The sort of copyright that comedians hold in their work is known as “spoken-word” copyrights.)  

While the streamers like Pandora and Spotify claim that a comedy recording is a single unified product that should attract only one license fee for the whole work, the comedians, for their part, claim that a comedy recording does in fact have two portions, namely, the recording itself and then the composition, or comedy writing, as separate components. To support their case, the comedians point to the situation with musical copyrights where the license purchaser, say a streaming service, buys and pays for both the musical recording itself as well as the composition of the song lyrics, as separate licenses. This argument was well foreshadowed by Black’s now famous remark that “a joke is just as powerful as a lyric of a song,” with the obvious implication that since the streamers are already paying separately for song lyrics, why not a joke as well.

Then again, one might well ask: if a musical recording and comedy recording are so analogous to each other, how come the two products have been treated so differently for so long and how come the comedians are only speaking up now?

It is worth noting how this question of timing seems to have played into the defense of the streamers as they attempt to fight off the recognition of this additional copyright, namely, comedy writing, which the comedians are seeking. In this regard, the streamers’ argument can be described as one based on tradition, something that some may well perceive as somewhat oppressive.  And it appears to relate to rather philosophical questions about the historical place of comedy in the broader society’s scheme of things and the inevitable value judgments around such questions. In this context, it is common knowledge that comedy’s existing recognition as an authentic art form or rather as “its own thing” is of rather recent vintage.  By contrast, music and the visual arts (think sculpture, painting, et cetera) have long been respected as legitimate art forms with valid claims to their own integrity and thus deserving of protection via things like copyright.      

Now fast forward to contemporary times and it is soon obvious that comedy’s fortunes have changed: with its newfound status as a legitimate art form, basking in the glow of a “golden age,” comedy no doubt has acquired a quite defensible claim to the greater protection of its integrity, just like music and the visual arts. Thus, for the comedy community, there is no better time than now to press this additional claim as part of an overall effort to protect every aspect of their art form and to benefit from it where appropriate. Quite simply, if not now, when?

So, in a manner of speaking, this brings us to a history versus law scenario: the comedy community’s good timing in launching this fight for a bigger slice of the pie is one thing, but whether the court will recognize their claim is quite another, considering the novelty of their claim. Though there is no certainty as to what the court will do, yet, if the comedians can justify their new claims under the law, then history won’t be able to stand in their way and they will win big. As already noted, such a big win will expand the contours of what elements of a work of comedy are protected from infringement and thus available for additional licensing. In this battle for more respect and money it seems like the comedians are the odds-on favorites to win, given the similarity of a joke and a song lyric in this copyright context and the sheer oddness of continuing to treat the two items differently. But, of course, the jury’s still out on the matter.  

*Book Release Notice: Well, folks, the new book “Comedy Goes to Court: When People Stop Laughing and Start Fighting,” is finally here and is scheduled for official release on September 22, 2022. Publisher: Hybrid Global Publishing. However, as of today the book is available on Amazon as an ebook for 99 cents. If you do obtain your copy at Amazon and you happen to like the book, please feel free to recommend the book to your friends/associates by simply giving the book a nice review/recommendation on Amazon. Enjoy the read and the laughs! Cheers!