‘HANGOVER’ IN COURT AGAIN: Much Ado about a Handbag

Enter The Hangover Part 11 movie and there we go again, back in the courtroom: As the rain continues to pour, this comedy movie has literally become the gift that keeps giving. The 2011 sequel has been a hit both at the box office and with trouble makers, and its latest trouble is all about a fancy handbag.

Last December in a New York federal court, the French handbag maker Louis Vuitton sued the movie’s producers Warner Bros. Studios for trademark infringement, claiming that the use of a knockoff Louis Vuitton handbag in the movie created confusion among its customers, weakened the Louis Vuitton brand name and damaged the company’s business. In the movie, Zach Galifianakis’ character carried a handbag marked LVM and warned his sidekick in the movie not to mess with the bag. “Careful, that is,…that is a Louis Vuitton.” The scene that Louis Vuitton is pissed off about lasted only about 25 seconds in the 102-minute movie. As it turns out, the knockoff handbag was made by a Chinese company named Diophy which Louis Vuitton is already suing for trademark infringement in a separate action altogether.

Before Louis Vuitton made its move, three other parties had already sued Warner Bros over the movie: First, Warner Bros. was sued about a ‘tattoo’ used in the movie; then they were sued by an injured stuntman who worked on the set of the movie; and then they were sued by a guy claiming that the producers stole the movie’s entire storyline from him. In its own lawsuit, Louis Vuitton is seeking a court order to force Warner Bros. to cut out the entire handbag scene prior to any further distribution of the movie, say in DVDs and other formats. Louis Vuitton also wants a slice of the profits made so far in the movie’s box office run. On a closer look, one will notice that this case is a few steps removed from the typical trademark case, where the person who gets sued is often the same person who violated the trademark in question. Here, Louis Vuitton is not suing the company (Diophy) which made the offending handbag; rather they are suing the producers of a movie which makes a joke about the fake handbag. So, the movie is really getting knocked for allegedly aiding and abetting the company that had violated Louis Vuitton’s trademark.

So, it turns out there is a little twist here. But can Louis Vuitton still pull things off in this case regardless? Well, maybe. For starters, the whole point of a trademark action is stop somebody else from creating “confusion” in the market place between that person’s products and those of the person bringing the suit. In the marketplace an established or popular brand carries a huge advantage in terms of customer loyalty and repeat business; therefore, for someone else to “pass off” their goods as being the popular brand is kind of like stealing that business. So, the concern about consumer confusion is a very big deal in a trademark action. But sometimes things can get a bit tricky, for example, where the people being sued are not the same people who have put the offending product in the market and therefore may well have had other goals in mind than simply trying to pass off somebody else’s products as their own.

In this case, for example, Warner Bros. has claimed that what they did with the handbag in the movie was a form of “artistic expression” which is protected by the First Amendment, rather than an infringement of Louis Vuitton’s trademark. Since the First Amendment concerns itself with protecting free speech and communication of ideas in a democracy, it follows that any speech whose main goal is to promote somebody’s business interest will not be protected. So, Warner Bros. will lose the free speech debate in this case if its main goal in using the handbag scene was to promote its own commercial interest. And by the way, just because Warner Bros stands to benefit financially from the movie by way of box office receipts does not necessarily mean that its use of the handbag scene in the movie could not be regarded as artistic expression. It all comes down to drawing the line between what is “artistic expression” and what is just an attempt to promote its business interest.

If it turns out that using the handbag scene in the movie was a business move rather than an artistic expression, then Warner Bros. should have obtained the permission of the trademark owner Louis Vuitton prior to adding the handbag scene in the movie. In such a case, Warner Bros’ failure to obtain permission from Louis Vuitton will put it in danger of creating confusion in the minds of consumers that Louis Vuiton in fact had something to do with the use of the handbag scene in the movie. That kind of consumer confusion is the classic situation that the trademark laws have the job of preventing.

So, long story short, if the court finds that the use of scene in the movie was a form of artistic expression and does indicate that Louis Vuitton had anything to do with the use of the handbag in the movie, then Warner Bros. wins. In that case, the court will excuse the fact that Warner Bros. did not obtain permission from Louis Vuitton before it added the handbag scene.

Yet, just because the use of the scene in the movie could be seen as artistic expression doesn’t mean that Warner Bros is home free. Since the concern about confusing consumers in the market place is the meat and bone of a trademark case, if the way the handbag scene appeared in the movie could still leave consumers with the impression that Louis Vuitton was behind its placement in the movie, then Warner Bros. will still have a trademark problem even though what it did can be regarded as a form of artistic expression. Of course, if the likelihood of confusion of consumers is rather small, then the artistic expression will be protected. So, just bringing in the First Amendment in a trademark case won’t necessarily cut it for a filmmaker.

But Warner Bros. is not the only party with the all the heavy lifting: If Warner Bros. can show that the handbag scene in the movie was a form of artistic expression, it may not be so easy for Louis Vuitton to show that a mere 25-second scene in the 102-minute movie was the sort of thing that would likely confuse its consumers and make them think that the company had something to do with the handbag scene in the movie. But then again, that same 25-second spot in the movie could also play into Louis Vuitton’s hands and allow it to claim that because the scene was so fleeting, consumers would not have had the chance to spot the difference.

Thanks to the First Amendment, suing a movie maker for trademark infringement in a place like America is not as easy as suing a manufacturer of a product, which is the typical situation where trademark actions arise. A movie maker can more easily complicate matters with a claim of “artistic expression” than a product manufacturer is able to do. And it is not that unusual for filmmakers to succeed in making that line stick: for example, owing to free speech concerns, a movie about fictional characters whose actions closely resembled those of real-life persons has been upheld by the courts as a form of artistic expression; the court in that case also refused to find that the movie created any confusion that the real life persons who were offended by the movie had anything to do with the movie.

In the end, the Louis Vuitton lawsuit against Warner Bros. is a tricky one that will involve juggling a bunch of balls. But from the look of things, Louis Vuitton may well have a taller mountain to climb than Warner Bros. When the chips are down, we’re talking about a trademark case between two companies who are not serving the same market (one makes movies and the other makes handbags). This is also the kind of case that would have been easier to win against Diophy (the manufacturer of the knockoff handbags) than the producers of a full-length comedy flick which talks about the fake handbag for 25 seconds. Plus, the whole First Amendment talk in an American courtroom doesn’t help matters one bit for Louis Vuitton which would rather just be talking about trademarks.

 

More to come next month….

“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.

South Park: Funny Lessons from a Court Battle

Not long ago, South Park, one of Comedy Central’s better-liked shows and one that is pretty big on spoofs, got the station and its parent company Viacom in what seemed like a bit of trouble. Some courtroom trouble, that is. And by the time the dust settled on the entire controversy, Viacom found itself not looking so noble thanks to certain positions it had previously taken on exactly what copyright infringement means in the age of You Tube.

Now, some background: In November 2010, music video producer Brownmark Films sued Comedy Central, Viacom and the producers of South Park, Matt Stone and Trey Parker, alleging copyright infringement against them and seeking a permanent injunction as well as damages. Brownmark claimed that a 2008 episode of South Park, titled Canada on Strike, improperly copied its own music video titled What What (In the Butt), a surprisingly popular viral music video that Brownmark in 2007 which starred the singer Samwell.

Incidentally, both music videos were posted on You Tube, the same company that Viacom had sued for a billion dollars in March 2007 for alleged copyright infringement. Before that lawsuit was dismissed in June 2010, Viacom had raised many eyebrows for claiming that once any video was posted on You Tube, that would automatically make You Tube guilty of copyright infringement even if You Tube didn’t know that such a video was violating somebody else’s copyright. Wrong! The court ended up telling Viacom that You Tube would only be guilty in such cases if the true copyright owner informs You Tube that the stuff running on its platform was stolen and You Tube still fails to take it down. Well, that was five short months before Brownmark sued Viacom for copyright infringement over the South Park episode in question.

But aside from the irony of Viacom the hunter now becoming the hunted, this case is a good lesson for folks who might want to know when using stuff found on You Tube could be said to cross the line into copyright infringement. A win for Brownmark here would have created a policing nightmare for You Tube as it would have had to investigate the copyright status of every video submitted to it. As the lawyers would say, You Tube would have become an insurer for every video posted on its platform. Pretty tough stuff! Fortunately for You Tube’s lovers and users alike, Brownmark’s chances of winning the fight were slim from the start and its end of the road came in July 2011 when the federal court in Wisconsin tossed the lawsuit.

But why did Brownmark lose? Well, quite simply, the court just didn’t think there was enough “copying” of one work by the other to amount to the kind of violation that would be punished by the law. And the court went out of its way to really stick it to Brownmark, relying on what’s called the “fair use doctrine” under the copyright law. To put it in layman’s terms, “fair use” occurs under copyright law when an earlier work is used by a latter work for the purpose of commentary, parody, education or some other purpose whose main goal is not to secure financial gain for the second work. Of course, when “fair use” is involved, there is no need to get the copyright owner’s permission.

In the South Park case, the court said that the episode that Brownmark was complaining about was merely a “parody” of What What (In the Butt). In a rather tough and dismissive language, the court said that the whole point of the episode in South Park was just “to lampoon the recent craze in our society of watching video clips on the internet that are…to be kind…of rather low artistic sophistication and quality.”

When a copyright case is being defended on the basis of “fair use,” one of the big factors that are weighed on the scale is the extent or degree of the “copying” involved. Needless to say, the more the second work copies from the first work, the bigger its problems become. This is because the more copying that the second work does from the first work the more it looks like the second work is reaching deeper into the wallet of the first work and grabbing its money. Here, we are dealing with notions of copying and market share. In the South Park case, the court didn’t think it was that big of a deal for South Park to have copied less than one minute out of Brownmark’s 25 minute work.

So, long story short, Brownmark lost and it was a quick defeat. But some people have wondered whether the result might have been different if the copyright claim would have been brought instead by the singer Samwell himself. Well, the court didn’t have to decide that question since it looks like the folks behind South Park got the proper permission from Samwell to use the song. That saved them the trouble of having to fight on that front. Yet, given the way the court looked at the case both from the perspective of “fair use” under the Copyright Act as well as the First Amendment which protects “parody”, it looks like the result would have been the same, regardless of who’s bringing the copyright claim. The court said there was no improper “copying”, period!

Still, Viacom and Comedy Central may not be the only winners here. Brownmark also won something which may have been its main purpose all along, if one considers the disparaging statement that Brownmark released against Viacom when it launched its lawsuit, plus the fact that their case was weak from the start, something they had to have known.

As it happens, the lawsuit gave Brownmark opportunity to perhaps teach Viacom a lesson by shinning a harsh spotlight on Viacom as a company that literally speaks out of both sides of its mouth and tries to have things both ways. As the narrative goes, first, Viacom attacks You Tube for letting folks post stuff on You Tube’s platform without clearance from the copyright owners. Then Viacom itself (through its subsidiary Comedy Central) dips into the same You Tube pool and lifts a video from the platform without clearance from Brownmark, the copyright owner. And then, when Viacom is confronted by Brownmark, it takes cover under the notions of “fair use” and “parody.” And it gets even worse: Viacom ends up winning the debate in court. How convenient!

In the end, though, there is much more at stake in this case than just whether or not Viacom is a straight shooter that plays by fair rules. The big thing here is really about allowing folks who are blessed with a creative impulse to do their stuff on You Tube and other forums and not have to worry too much about unnecessary copyright lawsuits. So, despite Viacom’s aggressive behaviors in the past, this is one lawsuit that folks who use stuff posted on You Tube or those who simply enjoy checking out stuff posted on You Tube are genuinely happy for Viacom to win. Talk about rooting for an old nemesis.

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’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 “free, 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, 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 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.-India.) It is only a matter of time before the courts tell Dhillon the same thing.

In the end, this one seems like a total no-brainer. As it happens, 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 aside. 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 needles people. 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 do it 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. As it happens, 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 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 suit was kind of heavy on the right of publicity and misappropriation of likeness talk, the court shot that down by stating that the Kimmel video clip had not been not 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 it may be fair to say that Sondik was simply dragged into the whole thing and, as he claims in is lawsuit, made a “laughing stock” of. Is it fair?

Perhaps, not quite, 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, there is no 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 his 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 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 and wants the certificate of copyright registration for the movie to be yanked plus damages and a court order to ban 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 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 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 the best place in the world for anybody who is or wants to be a comedian. 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 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 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 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 so, 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. 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 one where a TV crew, without proper authorization, filmed a woman in the throes of labor pains giving birth to a child and broadcast the image to the public. 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. Surely, McHale didn’t have to pull back any curtains in order to find the Reynoldses. Clearly, it was 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 those of McHale and Co. 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 or do and never get punished. 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 standup comic who is known for pushing a tough line with foul-mouth remarks that draw blood and 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 claims 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 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 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, it was Hollander himself, it seems, who had, quite surprisingly, forgotten an old lesson.

THE COMEDY STORE: A money tussle brews in court

The Comedy Store in Los Angeles is a legendary comedy club with a lot of proud history to it. And it is no stranger to rocky moments either, like its latest in-house brawl. In one word, the top management is at war with each other. Here’s what went down: In December 2009, comedian/actor Pauly Shore, one of the directors of the club filed a lawsuit at the Los Angeles Superior Court against Peter Shore, his elder brother and co-director at the club. Pauly alleged that Peter unlawfully got him removed as a director of the club and also denied him access to accounting information on the operations of the club. Both Pauly and Peter are the children of the club’s owner, the comedy doyenne Mitzi Shore, who is the third director at the club.

Among American comedy clubs, the Comedy Store literally has a background like no other. For the most part, the Comedy Store ‘made its bones’ in the heady 1970s when comedy clubs were just beginning to become the new big thing on the comedy scene and were the path to fame and big money in the industry. On the credit side, the Comedy Store was the place that fostered the careers of some of the biggest names we remember in comedy today: Jimmy Walker, Richard Pryor, David Letterman, Jay Leno and Robin Williams. But then again, the Comedy Store was also the place where comedians staged their first labor-union-type strike in 1979 in their fight to get paid for their work.

As it happens, Mitzi Shore, now in her 80s, owns 100% of the shares of the club. However, Mitzi is currently sick with Parkinson’s disease and is hardly involved in the day-to-day running of the place. By most accounts, since Mitzi’s withdrawal from running the place, Peter has been handling the money with Pauly taking care of booking new talent. Pauly claims that a month before he filed his lawsuit, he had asked to see the company’s tax returns, cash flow statements and cash register details. Rather than give him the information he was asking for, Pauly alleged that Peter refused to turn over the documents and then proceeded to get him fired as a director of the board, using his influence over their sick mother. Pauly claims that Peter exerted “undue influence” on their mother to get him fired from the board.

As one would imagine, the big question here is: Can Peter just hang on to the documents and then run Pauly out of town…just like that?
Well, perhaps, not so fast. For starters, a director of a company is a “fiduciary” of the company. (A “fiduciary” is someone in a position of trust and confidence with respect to another person. Under the law, a company is regarded as a person). Therefore, any of the directors of a company can inspect the books and records of the company as long as they do it for a “proper” purpose. Of course, they also have to follow the procedures laid down for getting access to such company information. A “proper” purpose may be any number of things, for example, to investigate fraud or mismanagement of the company’s affairs or even simply to figure out the value of the company’s assets.

With respect to removing a director of a company, usually, it is the shareholders (the owners of the company) who would have the power to do so. In the Comedy Store situation, it looks like Peter did manage to get Mitzi to fire Pauly. Since Mitzi owns 100% of the shares, she is in fact the true owner of the company and so would have the right to fire any of her directors. So, on the face of it, it seems that the removal of Pauly may well be valid. But then it gets complicated: Pauly has alleged that his removal was procured by Peter’s “undue influence” on Mitzi Shore. If that allegation checks out, then Pauly’s removal won’t look so valid anymore, and can indeed be overturned.

So, it turns out that proving “undue influence” is going to be the big thing in this case. Under the law, the potential for “undue influence” usually arises in situations where the two people involved do not have the same or equal capacity to make a sound judgment about things. This could be because one person has superior knowledge about the thing in question, e.g. a lawyer and his client when it comes to matters pertaining to the law. Or it could be because one of the two people involved in the situation, maybe due to illness or disease, simply does not have a good enough mental capacity or a state of mind that is “sane” enough to enable him or her to make a sound judgment about things. A situation where someone suffers from Parkinson’s disease, like Mitzi Shore here, would be the kind of circumstance where the danger of “undue influence” just might exist. Of course, there are other situations.

In any of the many situations where undue influence might exist, the concern of the law is to protect the weaker party (or the person who is under the disability) from fraud or unfair exploitation by the person in the stronger position. The other reason the law intervenes in these situations is to protect third parties or outsiders whose interests might be adversely affected if actions affected by undue influence are allowed to stand. A good example here may be, say, family members who may lose their inheritance under a will because their sick parent decided to change the will and give everything to his girlfriend. Or perhaps people in Pauly Shore’s position if his allegations turn out to be true. What the law does is to literally go over such transactions with a fine toothcomb to ensure that there was no overreaching involved.

As noted above, the Comedy Store situation is the kind of situation where the court would usually want to satisfy itself that there was indeed no “undue influence” considering that Peter, the older sibling was the one who is taking care of their elderly and sick mother. Plus, he got Pauly fired right when Pauly asked to look into the money situation at the company. Quite simply, if Peter explains the somewhat suspicious situation to the satisfaction of the court, then he will be fine and Pauly will most likely be out of the game. However, if the court finds that there was indeed “undue influence”, then Pauly will have a great day in court: first, the court could decide to overturn his removal and re-instate him as director. And then, the court could also order or compel Peter to turn over to him the documents he was asking to see.

To be sure, proving “undue influence” is no cake walk, not even by a long shot. And in situations like these, no one can say how the court will ultimately decide the case, mostly because of all the back- and-forth of presenting evidence and making inferences of fact which are all part of the cloud and dust of a courtroom trial.

And there’s something else here somewhere: Pauly didn’t seem to have done such a great job of troubleshooting ahead of time and this is somewhat surprising. He could, for instance, have tried to bring a “guardianship” proceeding seeking to have the court appoint a formal guardian for his mother. That way, since the guardian would be the one making the big decisions on behalf of Mitzi Shore, Pauly, right off the bat, would have eliminated the chance of Peter being able to influence his mother’s decision about who takes charge of managing Comedy Store. That being said, it is not too late yet to do so and he can still opt to go that route and get a guardian into the picture and simplify matters.

But whatever happens, fact is, the Comedy Store has come through so many storms in its checkered history and, as the saying goes, this too shall pass. Only this time, the court will get to say how that famous house of laughter is managed going forward. Of course, since this is a family business, it doesn’t have to be that way and indeed most comedy lovers would be hoping that the Shore brothers can work things out outside the courtroom and in a family spirit. After all, “this lawsuit is just a family feud,” as the old comedian Sammy Shore, the family patriarch and original founder of the Comedy Store in 1972 had observed at the beginning of the lawsuit.

MIKE EPPS: Onstage with a Process Server

Comedians have a reputation for being weird and Mike Epps, known for his roles in The Hangover and Jumping the Broom movies, is no stranger to weird moments. But what happened to him on May 6 was so weird that it caught him totally unawares, perhaps more so because he was onstage at the time and it wasn’t even a problem with some heckler. It was an officer of the law. Here’s what happened: Epps was in the middle of his shtick that evening at the Verizon Theatre in Grand Prairie, TX, when a process server walked up to him at onstage and served him some papers that summoned him to appear as a defendant in a lawsuit. The process server then walked off but not before Epps gave her a piece of his mind. In an angry outburst caught on a TMZ tape, Epps berated her with words like “white b—-“and “f— you” and “suck my d—“.

It turns out that back in November 2010, Epps had allegedly gotten into a fight with a photographer in a night club in Detroit and not wanting to let things slide, the photographer had filed a million dollar lawsuit against him.
Some people have wondered whether it’s even legal for process servers to approach comedians onstage and serve them with court papers. Short answer: if the process server can actually get to the comedian onstage and tell him what the papers are about, then, you bet, it is legal. And while it may be an unusual experience for comedians at work onstage, it’s not that unusual for other people to get served at work. A guy who works at a post office, a restaurant or at city hall could be served court papers at his job with all the embarrassment that could follow.

What we are talking about here is “due process” and it is a big constitutional matter. To make it as simple as possible, one can say that under the law, a person who is sued is entitled to be notified of the lawsuit against him so he can get a fair and adequate opportunity to answer the claim. If that is not done, then it means the court has no “personal” jurisdiction over him and any judgment rendered against him will be a waste of time. And the person can be notified of the lawsuit in any number of ways, as long as the method that is chosen gives him “notice” of the claim against him. Thus, a person being sued can be served with the court papers wherever he can be found, even out of state. That means that he does not have to be served at this home and he could be served at his job. Translation: a comedian can also be served at his job, onstage.

So, getting access to the person to be sued is the key thing. However, trying to reach performers like comedians onstage is kind of like trying to reach a celebrity rock star at a huge concert which means having to cut through his bodyguards to serve him with court papers. It’s never an easy thing but once the process server or some other authorized person can get access to the person to be served, that should do it. Perhaps, in Epps’ case, the comedy club owners might have tried stopping the process server from reaching the comedian onstage, if they would have known why she was there in the first place. But no, she was able to literally slip through the fence and serve the comedian, and that was that. Done!

How about his remaining options? Well, since he has been served, the court now has “jurisdiction” over him. But Epps can of course try to “set aside” or “quash” the court process on a whole bunch of grounds. For instance, he can try to show that the court papers were perhaps served rather late on him; or that the court has no power over someone like him, maybe because he lives outside the court’s territory and didn’t do anything inside the court’s territory; or even that the court has no power to deal with the kind of claim that the photographer is making against him.

If he is not able to set aside the court papers, then Epps will have to answer the photographer’s allegations against him. Since they were allegedly in a fight, the photographer’s most obvious claim against Epps will be for the tort of battery, which occurs when one person deliberately makes physical contact with another person without their consent and without lawful excuse. Since Epps apparently didn’t have the photographers’ consent to make contact with him, he would have to explain what lawful excuse he had for making physical contact with the photographer. If he was acting in self-defense at the time of the fight, or if he hit the photographer by accident, that might do the trick. The only problem here is that Epps already gloated onstage right after the process server gave him the court papers that “[t]his is from when I whooped that n——‘s ass in Detroit.” Ouch! …that won’t help his case one bit.

In the end, one may quarrel with the idea of a comedian being served with court papers onstage, considering all the distractions and pretty unsettling mind games that could come with it, something that not even the most obnoxious heckler could manage to do to any good comedian. Still, while it may be unusual and perhaps unfair to serve comedians with court papers in that situation, it is legal. Of course, the photographer and the process server in Epps’ case were obviously pretty aggressive in the way they moved to “hale” Epps into court. But then again, lawsuits are not exactly friendly affairs.