Lewis Black and his Posse: Comedians at the Copyright Barricades

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!

Joke Theft? SNL’s Michael Che in the Cross Hairs

Well, there we go again with the joke stealing thing: another accusation, another comedy star, another lawsuit. This time Michael Che’s number is up in the plagiarism altercations of the internet age. In case you missed it, the Saturday Night Live funnyman has been accused of purloining (okay, stealing) jokes from a TikTok video performer and now both Che and his partner HBO Max have been dragged to court. And the TikToker is asking for more than just money.  

But first, here’s the story: Kelly Manno is a TikTok performer who posts videos on the said platform covering various everyday situations like taking a home tour, grabbing fast food with kids in the car, carpools by moms and more. Last year around August and September, she released two TikTok videos which she claimed garnered many hundreds of thousands of views. The videos titled the “Homegirl Hotline” involved a fictional service which allows people to request a so-called “homegirl” to help them take care of personal problems in their lives. (In one of the TikTok skits, after being called in to help an upset woman get even with a cheating boyfriend, the assisting “homegirl” threw out the bad guy’s clothing from the woman’s upstairs window, then drops a label that reads “free shit” over the clothes strewn on the lawn downstairs before proceeding to puncture the tires of the guy’s SUV truck that was packed downstairs.)  Typically, after the “homegirl” deal is struck, the customer would express their gratitude by saying “Thank You, Homegirl”.  

Now enter Michael Che and his HBO Max comedy series titled That Damn Michael Che. One of the episodes of the series contains a sketch entitled “Homegrrl.”  There, a father’s young son is attacked at a building lobby by an agitated woman who claims that the boy had stolen something from her and was hiding it in his diaper. During the attack, another woman intervenes and punches out the woman who had lunged at the kid and then apologizes to the kid’s flustered father who then replies, “Thanks, Homegrrl!”.  It is this very line uttered by this father character in Che’s sketch that Manno claims infringes her copyright in the phrase “Thank You, Homegirl Hotline” which was uttered by the characters in her own video.  So, in her lawsuit, Manno is alleging that Che has willfully infringed her copyright in the video and is seeking serious money damages plus a court order (or injunction) stopping Che and HBO from continuing to use their sketch.      

Now let’s consider what the copyright law says about all this. For starters, one cannot obtain copyright in a work unless the said work is an “original” work that has been affixed to a “tangible” medium. Obviously then, Manno’s work here, whatever one might say of its quality, is “original” in nature (assuming, of course, that she didn’t lift the stuff from somebody else). Plus, TikTok as a platform qualifies as a “tangible” medium where works being presented for copyright protection can be situated. Therefore, at first blush, Manno’s “Homegirl Hotline” skit passes the copyright test and will be recognized as a “work” in which her copyright exists.

So, now that she’s sitting pretty as a copyright holder, how about Che? Did he, in fact, infringe her copyright? Well, not if he came up with his own work entirely on his own, in which case we will be dealing with a mere coincidence (which is okay) rather than a willful appropriation, which is not allowed. And of course, if we’re talking about willful infringement, we must assume that Che indeed had “access” to Manno’s work. (For folks in Manno’s position, one of the blessings of the Internet age is that proving “access” of this kind is a cakewalk because, hey, we all suppose that anyone can access anything posted for public consumption on a platform like TikTok.)

  Setting aside the question of coincidence, could the two works each enjoy copyright protection despite their apparent similarity?  Well, yeah: one cannot copyright an idea but rather only the particular (think original) way that the person has expressed the said idea. When we’re dealing with words, as in this case, what is or can be protected, incidentally, is the very way the words have been used rather than the all-too-familiar idea of expressing gratitude to someone (whether Homegirl or anybody else) who has done the speaker a favor. Translation: Even if someone in Che’s position saw the thing on the Internet, he can still avoid the copyright problem by simply using different words to express the same good-manners idea of gratitude. (Again, remember, no one can copyright an idea.) So, in the complicated world of copyright law, just proving that the second person had “access” to the first person’s work isn’t even enough.  Between the issues of coincidence, access and similarity of the works in question, the jury in these sorts of cases is dealing with and weighing up a lot of factors, which all makes for potentially expensive litigation and an oftentimes hard-to- predict outcome. 

This case brings to mind another copyright situation from across the pond in Britain, a case that just like the Che’s case, involves a lesser-known person going after someone with a higher public profile, as well as the same issues of coincidence; access, and the use of similar ideas and expressions. Only this time the dispute is between two actual working standup comedians, and funny enough, the dispute has led not to a copyright violation suit by the complaining comedian but rather a defamation lawsuit by the comedian who allegedly stole the other guy’s joke. (Feel free to call it the “smart fridge case”, if you like.)

In the British case, both comedians are making a joke about not wanting to buy a smart fridge, out of fear that said fridge would actually bother them with messages when then they’re away from home hanging out with their friends. One comedian (Darius Davies) claimed he first made the joke on the comedy club circuit prior to the second comedian (Kae Kurd) making the same joke on national TV.  Kurd, whose time on TV with the joke seemed to have garnered him newfound celebrity status (a prestigious talent agency rep plus a national tour) did sue Davies for defamation for essentially calling him a joke thief in a viral post that aired the accusation.

Although Davies has not filed a countersuit for copyright infringement against Kurd, the circumstances that existed between them before Kurd went to court present the same old copyright issues of coincidence, access and similarity of ideas/expression that we see in Che’s case. Indeed, they’d already argued over these issues (without any resolution) prior to the matter landing in court. At the moment, the parties are reportedly taking the traditional path of trying to resolve matters out of court. Makes sense in the circumstances.

 Returning to Michael Che’s case, it seems that the British situation offers clues as to the likely path out of the dispute: an out of court settlement. For a comedy star like Che, it may not be the best use of time and money to be wrangling about possible joke theft with a lesser-known quantity like Manno. There’s probably no path to a happy win for Che nor for HBO Max. If one were to take a bet, the odds are better than even that they’ll choose to just settle this pesky matter out of court and be done with it. But we’ll see how it all ends.  

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!