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.

ANDY DICK the defendant: When a Comedian Goes off the Deep End

Comedian Andy Dick is in trouble again. Only this time, he is not being arrested by the cops but is being sued by someone who won’t take his antics lying down.

In early May, a Dallas man named Robert Tucker filed a lawsuit against Dick, his agent the United Talent Agency (UTA) and a Dallas club named Trees where Dick had a show this past December. In the lawsuit, Tucker seeks damages against Dick, UTA and Trees for offensive physical contact, intentional infliction of emotional distress and defamation by conduct, plus separate claims for negligence against UTA and Trees, and yet another claim in premises liability against Trees.

Now here’s what happened: In December 2010, Dick was performing at a club in Dallas, Texas, and was dressed in a red skirt (with no underwear beneath), plus a black top and a wig. Then, as Dick moved among the audience, Tucker asked him for an autograph. Dick then allegedly pulled up a bar stool beside Tucker and proceeded to force his genitals against the left side of Tucker’s face. The night before, Dick reportedly pulled the same act in another club in Austin, TX, when while standing onstage, he pulled another patron’s head into his groin.

The claim against Dick gives Tucker his best chance of winning. Under the law, an offensive physical contact or battery occurs when one person deliberately makes physical contact with another person without their consent and without lawful excuse. Also, an intentional infliction of emotional distress occurs where one person does a wrongful act so egregious and outrageous that it crosses the line of decency and what can be tolerated in a civilized society. Defamation by conduct occurs where one person’s conduct damages the other person’s reputation by creating the false impression that the other person is something that they are not or that they did something they did not in fact do. At the minimum it seems that Dick may well be liable for causing an offensive physical contact or battery. He didn’t have Tucker’s consent to do what he did and it is hard to see what lawful excuse he had for his actions. And Dick’s odds of beating the other claims against him are not so good.

But the case against UTA (his agent) and Trees (the club that booked him) is not so straightforward and is a harder case to win. Yet, this would mark the first time that anyone is trying to make the folks who do business with Dick accountable for his bad boy behavior.

Here, Plaintiff Tucker is trying to rope them in along with Dick under a theory called “vicarious liability” where one person is held liable for the actions of another. And Tucker is making a big deal of the fact both UTA and Trees knew of Dick’s bad boy behavior and that they still arranged shows for him just so they can make money off his bad behavior.

But the catch here is that “vicarious liability” claims usually cover master-servant relationships, as in employer or employee situations where the employee is subject to the “control” and direction of the employer. In this case, Dick as a comedian is more of an independent contractor doing business with UTA and Trees, and is not their employee.

Plus, when we are dealing with an intentional (mis)conduct, like the actions taken by Dick in this case, it is pretty hard to show that one person authorized another to commit a wrongful act (or “tort”), especially when the person who committed the wrongful act is not an employee but an independent contractor. Again, since Dick is not an employee of either UTA or Trees, and he is not subject to their control and direction in the way he did his job as a comedian, Tucker’s claim against them for negligence in choosing to work with Dick despite their knowing about his past behavior won’t get far.

But of all the claims against Dick’s business partners here, the case against Trees for premises liability is the one that in other circumstances might have some legs. This is because having paid money to watch the show, Tucker is an “invitee” to the club and Trees, as an occupier of land, owes him a duty to take steps to keep the premises safe for his visit. Yet, that duty does not cover all circumstances and would only extend to dangers that the club owner could actually prevent. This is because Trees is not an insurer for Tucker or anyone’s safety.

And regardless of what Trees may have known about Dick’s past behavior, it is hard to show that Trees could have foreseen and prevented Dick’s sudden and unexpected mistreatment of a member of the audience who had merely asked for his autograph. After all, we are not talking about a loose overhead electric bulb falling onto Tucker’s head.

In the end, the obvious lesson for comedians here is that as far as consequences go, there is a line between what they say and what they do. Translation: though they may not get in trouble for making offensive and outrageous remarks while doing a shtick onstage (thanks to the First Amendment), comedians may yet get in trouble for acting out in physical ways, just like everybody else, including Dick.

HOWARD STERN vs. SIRIUS XM: Starting a Fire in the House

Howard Stern is a major newsmaker with a large footprint and these days he is starting some fires inside the house of Sirius XM satellite radio.

This past March, the humorist and self-styled “king of all media” sued Sirius XM [through his production company, One Twelve Inc,] in a Manhattan court alleging breach of contract against the satellite radio company for unpaid stock awards under their contract. Also, suing Sirius XM is Don Buchwald, the agent for One Twelve, Inc., who is claiming a consultation fee allegedly promised him under the agreement.

And it all comes down to what the agreement said or did not say about what happens if and when the big bucks start rolling in. Stern says the agreement requires Sirius to compensate him in the form of additional company stock every time his presence causes the number of subscribers to Sirius XM to increase over a certain number set in advance throughout the five year period. Sirius XM begs to differ and claims that it has met all its “obligations under the terms of our [the] 2004 agreement with Howard, his agent and production company.” Sirius XM also says it is “surprised and disappointed” by the lawsuit, which means that it has no plans to pony up to Stern and his agent any time soon.

It may seem rather odd that the parties continue to do business together despite the lawsuit, but this shouldn’t be too surprising given that the collaboration has been very lucrative for both parties so far. What’s not to like about smiling to the bank. (In January 2011, Stern got another five years on his contract for an estimated $400 million and Sirius XM is now 20 million subscribers stronger.)

It is interesting that Stern did not raise this issue of the additional stock awards until during the last year of the contract. So, can he now turn around and seek to enforce the right he seemed to have abandoned for years? Or does his silence over those years somehow mean that perhaps he knew he didn’t have the right he is now trying to enforce? Could this be some Monday morning quarter backing to corral more money? Stern claims that he held back out of sympathy for Sirius’ financial situation following its acquisition of rival XM in 2008. Yeah, right! Well, this is obviously a lame explanation in the world of business and it’s a pretty hard sell. As that famous saying goes [in English company law], “charity has no business sitting on the board of directors.” And everyone knows that Stern is a savvy guy.

Aside from Stern, Sirius XM’s actions have been somewhat curious as well. For instance, if they paid the compensation to Stern in the first year or two of the contract (as Stern claims), why did they not pay for the remaining year? Does their initial payment(s) somehow mean that they knew that their agreement with Stern required them to make the payments after all?

And there is the matter of the Sirius/XM merger. Assuming that the agreement in fact requires payment by additional stock awards to Stern, does the number of subscribers include the people coming in from the XM side of the ledger? Or is it limited to just the folks from the old Sirius alone? In talking about compensation based on performance or “rain making,” it may not be easy to just put them all in the same pot, especially if the XM subscribers were brought in simply because of the merger, and not directly because of anything Stern did. Take this loose analogy: If someone promised you $1 million if you have five children in ten years, can you still claim that money on the same footing in ten years if some of the five kids you are presenting happen to be adopted? This may be debatable.

However, one thing is for sure: if Stern is in fact entitled to get what he is claiming, then that particular clause in the agreement was so poorly drafted that it did him no favors at all. He shouldn’t have to go to court in order to receive what should be rightfully his. It all comes back to the old lesson among lawyers that a badly drafted agreement usually hands off an unnecessary lawsuit to the client and would often only help the person who is under obligation to do something for the benefit of the other person. In this case, it would be Sirius XM.

Still, just because Sirius XM may well be ahead on points doesn’t mean it would welcome this kind of publicity, especially coming from a media sensation with a big microphone like Howard Stern [who is notorious for his on air remarks when talking with the callers on his show].So far, he’s kept a surprisingly low profile on the whole thing, but who knows for how long. Also, the lawsuit itself is simply not good for business, to say the least: the day after it was filed, the company’s shares fell of a bit and some analysts downgraded them from Buy to Hold. Translation: these circumstances may be good grounds for Sirius XM to consider settling the case just to put out the in-house fires. And keep the courts out of the company’s business.

Comedians, Bloggers and Arianna Huffington: Who Gets to Be Paid?

For The Huffington Post (HuffPo) these days, it’s not easy being rich. This past April 12, barely two months after the influential news website was acquired by AOL in a celebrated $315 million deal, one of its former bloggers and union organizer Jonathan Tasini sued both HuffPo and AOL in federal court in Manhattan, seeking more than $100 million of the jackpot sale price on behalf of himself and about 9,000 unpaid bloggers of the website. The suit claims that HuffPo “unjustly enriched” itself at the expense of the unpaid bloggers (including the writers on the website’s HuffPost Comedy) who were promised “exposure” from writing on the website.

The website’s founder, Arianna Huffington, has dismissed the lawsuit as having no merit because there was no contract for the payment of compensation to the bloggers. Some people have compared the bloggers’ lawsuit to the lawsuit by the Winklevoss brothers against Facebook, which was recently rejected by an appellate court.

However, since we are talking about using free content to build a profitable online business, a more appropriate comparison can be made to what sometimes happens in the comedy industry, when rookie comics are still trying to get their feet wet in the highly competitive world of stand up comedy.  Usually at that early stage of their careers, most young comics are literally dying to get a venue to “showcase” their talents in the hope that they might be seen by important industry folks like booking agents, producers and casting directors. Or they might simply be looking for a venue to try out new material as they develop their craft. In such situations, it is common to find such rookie comics agreeing with the owners of comedy clubs and bars that they would appear in those venues and perform their stand up routines for free.  

So, as it happens, the unpaid bloggers at HuffPo and the rookie comics are making the same kind of bargain with their hosts, which reads something like this: “You give me ‘exposure’ at your venue or your website and you don’t have to worry about paying me. I won’t look in your pocket.”

Now, suppose they turn around and ask to get paid for all their past work? Can they win?

Well, since they have no contracts for paid work, we are not dealing with a breach of contract situation with all those binding legal obligations. The way it is, the comic can decide to skip a scheduled appearance at the club house or perhaps show up at a different venue. And the blogger can decide not to submit his written piece to HuffPo’s editors by the agreed deadline or can even choose to submit it to another website altogether.  Likewise, the club owner can decide to cancel the comic’s scheduled appearance or give his spot to another comic. And HuffPo’s editors can decide not to publish a written piece submitted by the blogger. In all these situations, there will be no legal headaches for anyone involved.  

But the bloggers and comics can perhaps bring an action for “unjust enrichment,” just like the HuffPo bloggers have done. (This is a lawsuit in “equity”.)  But here too, there is a catch: the bloggers and the comics have to show that at the time they made the appearance at the club or submitted the written piece to the editor they expected to “get paid” for their work and that the club owner or the website operator knew or had reason to know that they expected to get paid for their work and that it was not being done for free.  Was that the situation here?

Although the HuffPo bloggers likely won’t end up winning their case, they can still play their cards in the public arena outside the courtroom where the emotions of public opinion rather than lawyer arguments in a courtroom carry more weight.  Going back in history, one can recall that when some young comics inLos Angeles in the late 1970s tried to get paid for their work atMitziShore’s Comedy Store, these comics, including Jay Leno, David Letterman and Tom Dreesen, had to win their case out on the streets. They couldn’t win in court but, out on the streets, public sympathy combined with threats of business disruption at the comedy club to force the club owner to agree to start paying them for their work.  Even so, the comics won a right to get paid going forward, not for past work, as the bloggers are demanding.

If the HuffPo bloggers play it right, they may perhaps win a chance of getting paid for future work. In this time of high unemployment, when the rich corporations are not so popular, many members of the public just might feel that any bloggers whose efforts yield such a huge windfall for a website should receive something more than just the benefit of “exposure” from the website.