Going to Jail for a Joke: A Contemporary American Look at Germany Comedy

March 12, 2017

jan_bohmernann_photo6The saying that America is a ‘free country’ is something that Americans in the comedy business in contemporary times would probably appreciate better than most people. But in other places, however, thanks to their laws, comedians actually live in a different world and in some cases can actually go to jail for the content of their comedy. Perhaps surprisingly, Germany is one of those places.

Take the case of comedian Jan Bohmermann. In March 2016, Bohmermann, a German insult comedian and host of the satirical talk show Neo Magazin Royale took an offensive shot at Turkish leader Recep Tayyip Erdogan. Sitting in front of a Turkish flag and a portrait of Erdogan, Bohmermann read a poem in which he suggested, among other things, that the Turkish leader had sex with goats and watched child porn. Ouch! Well, perhaps this was great comedy for his audience but the offensive gag did in fact run up against an actual law in Germany which forbids anyone from insulting a foreign leader. The punishment? Up to three years jail or a fine.

Not surprisingly, the reaction of the Turkish government was swift and harsh. In demanding that Bohmermann be immediately punished for his action, the Turkish government denounced the satirical poem as a “serious crime against humanity…that crossed all lines of indecency” as well as an insult to all Turkish people’s honor. For her part, German chancellor Angela Merkel (under pressure to preserve her country’s refuge deal and overall fragile relations with Turkey) also condemned the poem as “deliberately offending,” and noted that Germany’s freedom of the media was not an unlimited right. Sensing that it had stepped into it, Germany’s ZDF, the public broadcaster that carries the comedian’s talk show, yanked the video from its website as well as on YouTube.

In contemporary America, it is taken for granted that something like the Bohmermann situation cannot happen here and indeed that is true. Thanks to the First Amendment’s prescription for “uninhibited, robust and wide-open” debate on matters of public concern, it is difficult to imagine any situation where a contemporary American comedian can be arrested and charged for the content of their comedy. Usually, if it should happen that some foreign leader doesn’t like a particular joke made by some American comedian, well, tough luck! No wonder it is said that the First Amendment is the comedian’s best friend and that America is the freest place on earth where a person can do comedy, gadflies like Bohmermann included.

Yet, in perspective, the American cultural landscape wasn’t always such a danger-free zone for any comedian who would push the envelope and thereby ruffle neatly arranged feathers or step on sensitive toes. The legendary American comedian Lenny Bruce is remembered as much for his heroic advocacy of free speech as for the tragic price he paid for doing so. Bruce was the classic iconoclast who never hesitated to attack the conventions of the American society of his time in a bid to expose what he considered as their hypocrisy, whether the conventions concerned religion, sexuality, race, the flag, and more. Consequently, between 1961 and 1964, he was arrested for obscenity in places like San Francisco, Los Angeles, Chicago and New York. The encounter in New York ended in an actual criminal conviction. (By the time he died in August 1966 of a drug overdose, his conviction was yet to be overturned on appeal. He was finally pardoned in 2003 by the governor of New York.) Today, thanks to Lenny Bruce and his leadership in the free speech battles of his era, no American comedian since then has been charged with a crime for the content of their comedy.

Speaking of Bohmermann, it happened that this past fall, the German authorities who had been weighing an indictment against him, opted not to do so, citing lack of evidence. For what it is worth, they claimed that since Bohmermann’s crude poem was simply an example of what would constitute overstepping the boundaries of freedom of opinion rather than him actually expressing his own views about Erdogan, he therefore didn’t violate the law after all. In other words, whatever Bohmermann was doing with his poem was OK as long as he had not expressed his own personal opinion about Erdogan. Now, for anyone who really cares about free expression, the trouble with this kind of reasoning is that Bohmermann was saved from going to jail precisely because he did not in fact (allegedly) express his own personal views about the subject he was dealing with. Translation: as German law sees it, not saying what is on one’s mind is actually the way to avoid trouble and jail. Really? Well, let’s just say that Americans, whether they are comedians or not, simply do not see freedom of expression in this way.

The other intriguing fact here is how even Bohmermann himself perhaps seems not to quite grasp the deeper implication of the prosecutor’s decision. To be sure, he was right (as a free speech advocate) in railing against the authorities for launching the investigation at all as well as for stating that “if a joke triggers a state crisis, it is not the problem of the joke, but of the state.” Only problem is, Bohmermann would have to be living in a place like America where that kind of protection exists as a fact of life for comedians courtesy of the First Amendment. Given the way things actually work in Germany where he lives, it is obvious that as long as this particular law remains unchanged, a joke which triggers a state crisis could indeed land a comedian in jail if that joke happens to be his personal opinion on the subject. Especially when such a joke rubs prickly foreign leaders like Erdogan the wrong way. Not a happy picture!

Still, it isn’t all fun and games in American comedy today and indeed may not be so any time soon. Although nothing quite compares to going to jail for doing a comedy act, as it was in the Lenny Bruce era, it remains true that the current culture of political correctness does present quite a headwind for the advance of American comedy. Where a comedian in the 1960s would have worried about a cop in the audience arresting him for, say, obscenity, today’s comedians rather worry about their act offending the so-called PC police on social media and other forums in the public square. Incidentally, the growing clout of the PC police has caused some famed contemporary comedians like Jerry Seinfeld and Chris Rock to opt to skip doing shows on college campuses where PC seems now to be almost a religion. However, to America’s advantage in the American-German match-up, we’re really talking about the impact of an actual penal law versus a mere social phenomenon that comedians, admittedly, find unpleasant. A night and day difference, it seems. Besides, it’s not as though German comedians themselves also don’t have to worry about PC, just like the Americans. They actually do! Not least because Germany for all its free speech deficiencies is still (get this!) another western society and an advanced democracy that exists in the 21st century.

In the end, the Bohmermann situation in Germany is something that really ought to be a big deal whenever an American comedian counts his or her blessings. For although the impact of PC is something like a rain on the parade, it is still safe to say that compared to other places, including similar western societies like Germany, doing comedy in contemporary America is an experience like no other. As they say, it’s a free country, live in it! And bring the comedy with you!


Louis CK, Saturday Night Live & Tig Notaro: Will the Joke Thief Please Stand?

September 16, 2017

Not long ago, Saturday Night Live (SNL) stepped into yet another joke theft controversy. And, this time, to give the matter some serious color, the controversy had some big names in the mix: First, there is the brash comic Tig Notaro, the star of Amazon’s One Mississippi series. Then, caught in the crosshairs of the fuss is none other than comedy’s reigning golden boy Louis CK, who hosted SNL last April. In this latest episode of SNL’s joke theft headaches, Notaro alleged that Louis CK’s Birthday Clown sketch looked disturbingly similar to her own sketch Clown Service, produced in 2015. Notaro described the similarities between the two sketches as “extremely disappointing”. (To be clear, the term being used in the media coverage of this particular matter is “plagiarism,” which is pretty much the same as what comedians would describe as “joke theft.”)

Judging from the sentiments of many of the folks who have weighed in on this matter, the answer to the question whether a joke theft violation occurred here seems sort of like the answer in that old fable where a bunch of blind folks were asked to touch an elephant and describe what it was like; each person’s answer depended on what part of the large animal they had touched. Well, in the present case, we seem to have a scenario where people are deciding there is joke theft or not depending on whether they view the matter through the perspective of “stand-up” comedy or “sketch” comedy. And there is a good deal of confusion in the mix, with different perspectives leading people to either support Louis CK and SNL or Tig Notaro.

But which side is right? Well, for starters, the reality that bears explaining in this debate is that stand-up and sketch are two different genres in comedy and therefore that what may be a violation in one genre may not necessarily be so in the other. What is even more important in this matter, however, is to get everyone on the same page about the exact situation they’re dealing with because joke theft is a quite rancorous subject in comedy and so to tolerate the notion that what people see depends on where they stand would only be a disservice to comedy. So, let’s proceed by clarifying some basic things.

First, the Stand-up format. A “joke” in this genre is a two-sided deal: you have the “premises” which is the concept or idea around which one builds the story or narrative; and then you have the “punch line” which one can think of as the end game or the goal line of the shtick. Among folks in the comedy community, the call on joke theft can be quick and brutal: the first person who comes up with the premises is the owner of the joke; the person who repeats the said premises afterward is the thief. Of course, people can always fight over whether or not the premises are indeed similar to one another. (Under Copyright Law, though, the premises aren’t that big a deal, meaning that as long as the second person does not use the exact same words that the first person had used, he or she would be standing pretty under the law. Not surprisingly, comedians are often disappointed to learn of this state of affairs.)

Anyhow, applying the stand-up logic to our situation here, one could say that since the premises of both sketches are about depressed people hiring the services of a clown to lift their moods, therefore Louis CK and SNL’s Birthday Clown joke was stolen from Tig Notaro’s Clown Service. This is one perspective of the matter, namely, that both SNL and Louis CK did indeed engage in joke theft.

However, that perspective itself would be wrong because, in our case here, we are actually dealing not with stand-up shticks but rather with sketches which are a different animal altogether and so would require a different treatment.

Now, let’s examine the Sketch format. Here, if we consider that, compared to a stand-up shtick, a sketch is a vastly more extensive comedy production which often contains a cast of characters who can take the trajectory of the story or experience in any number of unpredictable directions, then it is logical to suppose that the “premises” portion in a sketch probably won’t (and shouldn’t) be as significant as it would have been in a stand-up shtick, given that the premises and the punch line in stand-up often have a closer relationship, in terms of both duration and narrative possibilities. Besides, it is important to keep in mind here that the [intellectual] “property” which the society seeks to protect with its anti-plagiarism laws, for instance, really is the stamp of creativity that someone has attached to the particular concept or idea in question. To appropriate that creativity without the owner’s authorization is the mischief that the law prohibits. Logically, therefore, merely using the same idea, without more, isn’t a problem.
Typically, in a sketch controversy, we’re dealing with the degree of similarity between the elements of both sketches. Generally, the more substantial the similarity between the two, the riskier it all gets for the person trying to fend off the accusation of joke theft.

In the present case, it is true that the premises for both sketches are similar, but that appears to be the full extent of it − the similarities just don’t go far enough to establish a case of theft between both sketches. Notice that the other parts of the equation are missing. For instance, both what happens during the time the clown was in the house as well as how the interaction between the host and the clown ends are different in the two sketches.

So, in the interest of putting matters in their proper perspective and steering clear of unnecessary confusion, this is really how the present joke theft dispute ought to have been judged in the first place because, as already noted, we’re dealing with sketch rather than stand-up.

Yet, while there are sufficient grounds to clear SNL of wrongdoing in the present controversy, it is worth noting that SNL hasn’t exactly been a model player in the sketch wars of the recent period. Indeed, for those wishing to tar the marquee show with the brush of joke theft, SNL’s actions in some of the earlier controversies couldn’t have given them better ammunition. In 2014, for instance, it was called out for the striking similarity between its own Tina Turner skit and that of the Los Angeles comedy troupe The Groundlings. Then, just a year later [in 2015], SNL had yet another joke theft accusation thrown its way over a skit involving the drawing of Prophet Muhammad. This time, SNL was alleged to have lifted the skit from the Canadian TV show This Hour Has 22 Minutes (a.k.a. 22 Minutes).

In the end, as far as joke theft is concerned, it is obviously difficult to solve a problem that one cannot even define clearly. So, perhaps the real benefit of this particular case, given its high profile (think SNL, and boldface names Louis CK and Tig Notaro), is the ‘teachable moment’ it represents concerning the critical need for conceptual clarity in judging these situations. Going forward, if the proper lessons are learned from the confusion that has attended this case, it will mean that people in the industry will be able to put future joke theft disputes in their proper perspective. That way, as we continue to search for solutions to the divisive issue of joke theft in the comedy industry, much unnecessary confusion will be eliminated and everyone will be on the same page as we judge each new case. Needless to say, joke thieves in our midst deserve no protection at all; yet it is important that we as a community are able to at least pin the rap on them in a fairly unified voice.


**For more information on joke theft, read Chapter Three of the book “Comedy Under Attack: The Golden Age & the Headwinds,” (2013)


Suing JOHN OLIVER For Defamation: A Good Use Of Time?

August 6, 2017

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls


Spinal Tap vs. Vivendi SA : Crusading for Artists’ Rights or Re-Playing a Familiar Old Script?

July 5, 2017

Spinal_Tap_photoThe practice of “bizarre” accounting by Hollywood studios and the corresponding resentment of this perceived injustice by the creative artist community are nothing new. And from all indications, the passage of time has done little to ease the tension and confrontation between the two sides, as is demonstrated by the latest David and Goliath-like confrontation involving some artists and yet another Hollywood studio. In its June edition, GQ magazine did something rather interesting with comedy: it featured in its self –styled Comedy Issue a report on the rather surprising lawsuit filed against French company Vivendi SA by the quartet behind the seminal 1984 comedy movie This is Spinal Tap.

At issue here (as usual) is the divvying up of the proceeds accumulated by the movie over the years. Vivendi claims the film has brought in revenues of only $5million over the 30-plus years since it was released. To the contrary, the Spinal Tap plaintiffs (Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner) claim that the Hollywood studio is vastly underreporting or lowballing the actual figures. In fact, the plaintiffs are claiming to be entitled to a whopping $400 million dollars in the lawsuit that they filed last October against the studio in which they alleged fraud, breach of contract and abuse of power. In addition, the plaintiffs made the obligatory demand for an accounting from Vivendi.

Incidentally, as indicated above, a lawsuit by aggrieved artists arising out of a high grossing movie, surprisingly reported by the studio as a net loss, is an all too familiar scenario in Hollywood. For instance, the Return of the Jedi movie from 1983 was reported as a loss by the studio despite grossing well over $500 million worldwide even though it cost just around $43 million dollars to produce. Same bizarre accounting formula was employed with the Lord of the Rings trilogy; Coming to America and many other successful movies in order to portray their revenue status as net losses. Only in Hollywood!

In perspective, therefore, this case is a pretty big deal for artists’ rights, since a victory here could create a whole new paradigm in studio-artists relations, especially in how box-office and other movie-related revenues are divvyed up between the two sides. Hence, Shearer, one of the present plaintiffs, boldly declared in a Rolling Stone magazine op-ed in April that his team is on a “mission for fairness” and that their desire is to “highlight the long standing and improper accounting practices in the music and film industries…an opaque world of film financing, revenue accretion and minimal profit share.”

Of course, the artists are not the only ones with a dog in this fight. Perhaps Vivendi (read Big Hollywood), considering its stature and modus operandi, may well deem itself to have the bigger dog in this fight. Certainly, a defeat in this litigation will likely force Vivendi to involuntarily change its business culture and, who knows, it could even cause other aggrieved parties from its past business dealings to seek a present redress of past wrongs. This is the proverbial slippery slope nightmare that anyone in Vivendi’s position would rather avoid. Thus, for prudential reasons, the studio would rather continue keeping the door closed on these matters, by either clearly prevailing in this lawsuit or at least appearing not to have lost.

So, what does the future hold for this case? Well, for starters, the accounting issues will be the heart of the case. By comparison, the other claims are easier for the plaintiffs to navigate under black letter law: for breach of contract, for example, they need only show that they made a valid contract with the studio and that while they did their own part, the studio reneged on its own part. Concerning the fraud claim, they need to show an intent to deceive or actual deception on the part of the studio. For abuse of power, well, if it actually occurred, then that shouldn’t be hard for the plaintiffs to establish, given the unequal strength and bargaining power between the two sides in the movie business. Here, any acts of overreach by the studio could be a significant consideration in the proof department.

Thus, in a manner of speaking, the accounting issue is really where the rubber meets the road in this case because at the end of the day, this is a case about money. A lot of money, indeed. Aside from ticket sales, there are other revenue streams like VHS/DVD sales, merchandising, music sales, concert tickets and more. And the vastly differing claims of both sides further complicate the matter: for example, while the Spinal Tap plaintiffs claim $400 million dollars as owing to them, Vivendi counters that the entire revenues earned so far is just $5million and that ‘revenues from other sources and territories have been similarly modest.” (And oh, as long as we’re talking about Vivendi’s pushback against the plaintiffs, it is worth mentioning the arguably cynical suggestion of some that Vivendi could spring a copyright defense at the plaintiffs. Well, suffice it to say that that’d be an uphill battle for the studio since this case is fundamentally a breach of contract matter. Besides, speaking of copyrights, the plaintiffs themselves, reportedly, already had an actual demo of the movie prior to their contacts with the studios. )

So, anyway, the puny payments made to the plaintiffs so far is clearly indicative of Vivendi’s perspective to the matter: For instance, despite the wild popularity of the movie (which late-night show host, comedian Stephen Colbert, echoing a widespread sentiment, recently described as something that “singlehandedly created a genre….and an iconic piece of comedy”), the four artists together have reportedly received $81 as a share of merchandising revenues and another $98 for music sales revenues over a 20-year period roughly spanning 1984 -2006. This laughable figure is a very far cry from the 40 per cent of net receipts from the movie’s revenues and 50 per cent of gross receipts from the music sales revenues that the plaintiffs are claiming. The sheer gulf between these conflicting claims is breathtaking and untangling them in a litigation context will be an eye-glazing ordeal.

In any event, as the court enters upon the arduous task of plumbing the numbers on the accounting issues (naturally with the assistance of the accounting and other experts), it is foreseeable that some heads of expenditure claimed by the studio may either be allowed in part or disallowed as a whole, if found unreasonable or otherwise to be abusive of its dominant position to the detriment of the artists. Usually a higher burden is placed on the studio in these circumstances since it is deemed to be the stronger party because of its position. In other words, the balance of knowledge and information power on the accounting issue weighs heavily in the studio’s favor since it controls the movie’s production budget including sales and expense figures, which are matters the plaintiffs would ordinarily not be in a position to control. Plus, the studio’s control over these matters would have required it to exercise discretion and business judgment over them in a manner that would have a direct bearing on how much profit is ultimately made by the movie. And so on. All the while in this process, the guiding principle for the court will be the studio’s obligation to “deal fairly” with the artists.

Though their burden may be lighter, the plaintiffs’ side has some difficult work to do as well; for instance, they may have to justify their not-too-obvious formula for deciding that net receipts are OK for the movie revenues whereas gross receipts apply to the music revenues. Plus there will be other questions and possibilities that will inevitably arise in the push and pull of litigation.

In the end, this case like others before it will be decided mostly by practical considerations, regardless of the posturing on both sides and the bold statements of principles. One is the desire of the studios not to wash their dirty linen in the public or, worse, to actually lose the case. The other is the concern of the little guys (the artists) not to spend themselves into the poor house while going up against the hardball tactics of deep-pocketed studios in complicated and accounting-heavy disputes with an uncertain outcome. Incidentally, these rival motivations do reduce the odds of an actual trial of this case on the merits, and thus favor the settlement of the case pre-trial. Yet, for the broader artist community, it would seem that an actual “judgment” with a declaration of the rights and obligations of both sides will be a big help in their future collaboration with the studios. Needless to say, a “settlement” of the case will be considered by many as a familiar ending to an old script as opposed to the dramatic step of actually getting a judgment following a trial on the merits. Anyhow, only time will tell if we’re watching the re-play of an old script or witnessing the start of a brave new world in artists’ rights and Hollywood accounting.


When Comedy Met Hypnosis in Court

March 1, 2016

dougT-show_photoAs life goes, the chance of witnessing something weird at a show goes with the territory in comedy. And when weird things do happen, it’s fair to say that an audience member taking matters to court may well find himself in plenty new territory when it comes to pulling out a win, whether they’re suing the comedian, the comedy club or anyone else in comedy land for that matter. This may be especially true if they are suing the comedy club for something that the comedian has done onstage. But first, here is the story:

In March 2014, comedian and hypnotist Doug Thompson was performing his signature DougT Hypnosis Show at the Funny Bone Comedy Club in Omaha, Nebraska, when audience member William Bendorf joined the group onstage for a comedy hypnosis session. (The hypnosis sessions usually consist of audience members volunteering to be hypnotized onstage, with the comedian causing them to believe and react as though various imaginary scenarios are in fact real. In one situation, the comedian got the participants to believe that an innocuous waist belt was in fact a dangerous snake, causing them to scamper to safety in various directions, some climbing over chairs in their bid to flee the stage.) At the end of the hypnosis session on this particular date, the comedian asked the participants to exit the stage and return to their seats in the audience via the stairs. Instead, Bendorf, ignoring the stairs, made straight for his seat in the audience and in the process plunged off the stage and suddenly hit the floor and suffered a leg fracture that required surgery. Bendorf claimed he was still in a trance at the time he fell off the stage, reported by some accounts to be roughly three foot high. “He was in that zone – that sort-of unconscious state. He didn’t snap out of it until he crashed to the ground… it was definitely a rude awakening,” said his lawyer, Richard Shicker. Well, this past December, Bendorf sued not the comedian but the comedy club itself, seeking damages for his injuries.

Speaking of filing a lawsuit over his injuries, perhaps the first question is why Bendorf chose not to sue the comedian at all. After all, it was his interaction with Thompson that caused the tragic fall to happen. The obvious claim in any suit against Thompson would have been “negligence,” meaning essentially that, given the circumstances of the case, a reasonable person in the comedian’s [Thompson] position should have been able to foresee that commanding someone who was still in a trance following a hypnosis to exit the stage in that condition was likely to result in the sort of fall that caused Bendorf’s serious injuries. In such a lawsuit, it would then have been up to comedian Thompson to make whatever defenses he might have and indeed there are a number of possible defenses open to him in such a lawsuit. But, of course, none of that stuff arises here because Bendorf simply opted not to sue the comedian.

And, by the way, all this doesn’t mean that Bendorf’s decision not to sue the comedian was a silly choice. Not necessarily, it turns out. After all, when it comes right down to it, a lawsuit of this sort is, let’s face it, an attempt to get money for one’s injuries or damages. That being said, if someone who has been or claims to have been injured can find some legal ground upon which to sue someone else who perhaps has more financial resources, it may actually be a smart idea to simply reach over and sue the deep pocket right away. (Incidentally, these kinds of calculations are fairly common in personal injury lawsuits such as this one. And who knows, perhaps Bendorf’s side might have made a different calculation about who to sue if Thompson were instead a rather famed millionaire comedian with tremendous resources.)

So anyhow, now that he has sued just the comedy club, then what? Can he win against the comedy club?  Well, again, just as in the situation with suing the comedian, if he’d decided to do so, the obvious claim here would be a “negligence” claim against the defendant Funny Bone Comedy Club since nothing was done intentionally by anyone. To cause the injury. The idea behind making a claim of this sort is that somehow the comedy club had control over the actions of the comedian and so was in a position to have prevented what happened to the plaintiff Bendorf.  We are talking here about something along the lines of an employer- employee relationship (or the old school master-servant relationship). In each of these situations, the person in control of the situation, say, the employer or the master, defines the scope of the work as well as how the work itself is to be done. So, it is easy to see how an injured person could go after the employer or the master for the particular misconduct of his employee or servant that allegedly resulted in the injuries. The point here being that the employer was negligent either in the way he hired the employee (“negligent hiring”) or in the way he supervised the work of the said employee (“negligent supervision”).

Fair enough! Yet this is precisely where the problem arises in many of these cases. In our case here, for example, can we say that a comedian performing at a comedy club is an employee of the comedy club and that the comedy club is in control of the way and manner the comedian performs his gig? Obviously we can say that much for a bar tender at a comedy club, but a performing comedian? Well, not so much.

To the contrary, a comedian performing at a comedy club is more like an “independent contractor” when talk turns to his or her relationship with the club. Simply put, an “independent contractor,” as the name suggests, is some outside guy who comes in to perform a particular task under a contract and who chooses the way and manner of getting his task done. Needless to say, someone in that kind of situation acts as his or her own boss and does not work as an employee of the other person who contracted him or her to do the job. Long story short, the fact that comedian Thompson is something of an “independent contractor” rather than an “employee” of Funny Bone makes this a pretty hard case for Bendorf to win.   Needless to say, speaking of an easier case for Bendorf to win against the club, it’s fair to say that if a light bulb, for instance, would have fallen on him while he was in the comedy club taking in a show that day, it’d be a different ball game altogether when it comes to suing the club.

In the end, Bendorf’s present case against Funny Bone looks like a tough uphill climb. And the sheer scale of this tough slog isn’t lost on his lawyer who reportedly admitted that he’d never encountered this kind of lawsuit in his 41 years working as an attorney. No kidding! Well, it turns out that his lawyer’s remark is true in more ways than one, including the fact that he has better odds of winning against the person who has not been sued (the comedian Thompson) than the  person who has indeed been sued (the comedy club).



Accusing Conan O’Brien: Two Joke Writers Walk Into a Courtroom

November 10, 2015

conan_o'brien_photo2Accusing people of joke stealing has become such an old problem in comedy that it hardly raises eyebrows anymore. Except maybe when somebody is actually accusing an industry heavyweight like Conan O’Brien of being, ahem, a joke thief. But this one case seems more interesting than most because of the rather contemporary feel to it all: the alleged joke heist took place on Twitter, the emerging “it” forum for pushing jokes in our social media age. So, behold an old problem invading a new space even though said problem is still an unresolved menace in all the old places it had come from. But first here’s the story:

This past July, a comedy writer in the San Diego area named Robert Alex Kaseberg filed a copyright violation lawsuit in federal court in California against Conan O’Brien and all those associated with his show, including TBS, Time Warner, Inc., and his writing staff. Kaseberg alleged that four of his jokes that he posted on his personal blog and on Twitter later appeared on O’Brien’s monologue during his TBS late-night show Conan without any attribution to him or compensation to him. . The four jokes at issue ranged from gags about Delta Airlines and Tom Brady to the Washington Monument and Bruce Jenner.

Here’s a sample of some of the jokes allegedly stolen by O’Brien:

Kaseberg: “A Delta flight this week took off from Cleveland to New York with just two passengers and they fought over control of the armrest the entire flight.”

O’Brien: “On Monday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest.”

Kaseberg:  “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”

O’Brien: “Surveyors announced that the Washington Monument is ten inches shorter than what’s been recorded. Of course, the monument is blaming the shrinkage on the cold weather.”

Anyhow, Kaseberg seeks hundreds of thousands of dollars in damages.

In the scheme of things, this case seems to have a bit more significance than many might think at first blush. For starters, it shows that the old worries about joke stealing in comedy won’t be going away anytime soon; indeed the problem has now migrated to the social media arena, as it tracks the movements of the modern comedian and the newfound location of comedy audiences today. Unlike comedy clubs, Twitter is more like an open access forum, where things like a cover charge, drink minimums or other similar restrictions do not exist. The other angle to this story presents something of a David and Goliath scenario: like, when a lesser known comedian is claiming the same joke as a nationally known late-night comedian with the large microphone of national TV, all the advantages seem to run in one direction so that the odds of the lesser-known guy (the little guy) winning that battle is usually pretty steep – and punishing. Assuming, of course, that the person who’s being accused actually stole the joke from the other.

But anyhow, aside from who has a bigger microphone between the two, when we consider just the law, can the little guy in this case actually win? Well, let’s see:

For starters, it is obvious from the present lawsuit that we’re dealing here with copyright law. And although Twitter is a new medium, the idea of violating someone else’s copyright − either in a joke or in some other protected thing like a movie or a book − is still the same. In very simple terms, for a piece of work to receive copyright protection under the law, it is required to be both “original” as well as be fixed in a “tangible medium of expression”.  As the name implies, an “original” idea is something that the person claiming the copyright protection basically came up with on their own; in other words, something not copied from somebody else, so to speak. Well, there are some rules, perhaps many rules around the whole notion of “originality” in copyright law. For instance, certain things or ideas are just not of the kind that can be protected by copyright and so no one can be granted a copyright on them. The common expression “Happy Birthday!” for instance, probably falls into the class of expressions for which no one can be granted a copyright. Again, just because two people have expressed their ideas in the same exact way doesn’t necessarily mean that a copyright has been breached. In such a situation, it must also be shown that the person who is alleged to have violated the claimant’s copyright actually had access to the said copyrighted material. Otherwise, the alleged similarity between the two works could be chalked up to mere coincidence. Yeah, a showing of coincidence could actually save the day for the person being accused of copyright violation.

To return to the O’Brien situation here, two things look like they are clear: first, the jokes being claimed by Kaseberg seem to be original enough as to qualify for copyright protection, assuming, of course, that he has properly registered those particular jokes at the Copyright Office; second, the jokes involved here were affixed to a tangible medium, namely, Twitter. Plus, it is also true that Kaseberg published the said jokes on Twitter before O’Brien used them in his monologues on his show. (The Delta flight joke, for instance, appeared on Kaseberg’s Twitter page earlier in the day on January 14 before O’Brien made his own joke later that same day in his late-night monologue.)

Yet, that’s not the end of the matter. Among other things, even though Twitter is an open forum where anybody can have access to, Kaseberg will still have to show that O’Brien actually lifted the jokes from his Twitter page. Interestingly, O’Brien’s people have already rejected the suggestion that they got the joke from Kaseberg’s sources. In a reported conversation between Kaseberg and Conan’s head writer Mike Sweeney (published on Kaseberg’s blog), Sweeney did “angrily and loudly” deny that the jokes came from Kaseberg and was “furious” and “incensed” at the suggestion that his writers would have anything to do with the “pathetic blog of a no- name failure” like Kaseberg. Despite the striking similarity between the O’Brien and Kaseberg jokes, the obvious implication of the pretty hard pushback by O’Brien’s side is the assertion that his people [the writers on his show] came up with the jokes by themselves.  Well, unless Kaseberg has some kind of smoking gun of the alleged heist, he doesn’t seem to have a pathway to victory here. Tough stuff! Plus, it doesn’t help him too much that only the Delta flight joke comes up on a search of his blog or Twitter record from that period; the other three do not.

At this point, it is not clear how long this litigation will drag on and for that matter how well Kaseberg’s claims will hold up in the end. If one were to take a bet on the outcome of the case, it would seem like a better bet to say that the case will settle somehow and not go the distance. Though Team O’Brien might well decide, standing on principle, to fight this whole thing to the bitter end, the odds of a settlement of this matter looks somewhat decent. At this point, for O’Brien’s side, the bigger pain isn’t so much the merits of Kaseberg’s lawsuit as it is the optics of it all.   Considering the striking similarity between their respective jokes and the showbiz reality that some folks who don’t much like O’Brien just might be tempted to believe the worst of him in this situation, O’Brien’s side might find the idea of a settlement not to be a bad one after all. A successful show like Conan would likely prefer to avoid the unnecessary distraction and embarrassment of this kind of pesky argument with a guy like Kaseberg. And the other good news here is that Kaseberg himself claims to be a fan of the Conan show and has already requested an opportunity to start contributing to the show.

In the end, it is not that hard to observe that when it comes to protecting jokes in comedy, not much help is available under the copyright law. By comparison to what is done for movies and music, the protection afforded to comedy jokes is rather quite weak. By the way, as matters stand in comedy at this time, if somebody in O’Brien’s position is in the mood to steal jokes and is worried about copyright lawsuits from folks like Kaseberg, all they have to do is to simply use different words to say the same joke and (get this!) they’d be home free. With a copyright scenario like that, it just seems that the notion of protecting jokes in the comedy world at the moment is perhaps nothing less than a big joke in itself.



Jim Belushi: Sticking Up for a Name and a Brand

June 21, 2015

jim_belushi_photo6Lately, comedian/actor Jim Belushi seems to be spending quite a bit of time in court trying to protect a prized asset: his name and its brand. In show business, there can be plenty to a name, especially if money is riding on it. Obviously, this knowledge isn’t lost on Belushi as he makes his adventures in the courtroom with a double-barreled lawsuit.  But first here’s the story:

As it happens, Belushi owns the “Belushi Comedy Bar” trademark which he licenses to stand-up comedy clubs in exchange for royalty payments. In one lawsuit [filed in Chicago on June 5, 2015] Belushi claims that in the fall of 2014, he and his company Bessie Blu entered into an agreement with Kyle Lane, co-owner of Chicago club “The Comedy Bar”, which would allow the comedy club to use the Belushi Comedy Bar trademark in its business operations. As part of the overall agreement, which was in draft form only, Belushi’s company Bessie Blu laid out close to $17,000 in November 2014 for the installation of new lighting on the stage of the club’s new location. The trademark deal itself, however, fell through in January 2015. In the same fall 2014, Belushi claims that he and Bessie Blu made a loan to Kyle Lane to help the business operations of the club on the understanding that the loan will be repaid “in a timely fashion.” Following the January 2015 collapse of their trademark deal, Belushi alleges that Lane has failed to repay the loan and has refused to sign a document that would “memorialize” any oral agreement they had related to the payments.

The third leg of this lawsuit was Belushi’s claim that he was owed about $39,000 for some promotional work he did on behalf of the Comedy Bar between 2012 and 2013 − following an oral agreement he made with Lane. Belushi’s alleged promotional work included TV appearances, radio and newspaper interviews and visits to high-end hotels in the Chicago area. The bill for the promotional work includes lodging and travel expenses allegedly incurred by Belushi who lives in Los Angeles. In this lawsuit, Belushi seeks reliefs in damages for breach of contract and unjust enrichment.

The other lawsuit filed one day earlier [June 4, 2015] against Sahar Chavoshi, the club’s general manager, was based on the events that occurred after January 2015, as stated above.  According the Belushi’s lawsuit, Chavoshi maligned or bad-mouthed him to other comedians, leading to the cancellation of some shows at his other clubs. Belushi claims more than $50,000 in his defamation lawsuit against her, plus punitive damages.

At the outset, one thing that catches the eye here is the way that Belushi filed two separate cases against Lane and Chavoshi revolving around the same failed trademark deal. Though he has the right to do so, this is sort of an unusual move in these situations. For starters, it probably would be less expensive to do it all in one shot by way of a single lawsuit. Plus, if he was looking to get this stuff all behind him as soon as he can, then clearly, pursuing two separate lawsuits, a tactic that may well land him in two separate courtrooms, isn’t the best way to achieve that goal. Given all this, it just might be better for him to consider consolidating the two cases together in order to fight his battle in a single lawsuit. (It is difficult to see what tactical advantages he could reap by continuing to pursue the two lawsuits separately.) The other thing about the lawsuits is that we’re dealing with mostly oral agreements with respect to the claims he is making. Even in the one situation involving the trademark deal for the Belushi name, where something was allegedly written down, the document remained just a ‘draft’ that never evolved into an actual valid agreement. So, as a practical matter, the disputes arising from that agreement will be resolved in the same way that disputes are resolved in oral or unwritten agreements generally.

Now, that said, how will Belushi fare in his two lawsuits? Can he win?

Let’s begin with the unjust enrichment claims. This relief is usually granted as an “equitable remedy.” In lay person’s language, this legal jargon simply means that the court is acting in the interest of “fairness” in order to prevent one person from hanging on to ill-gotten gains at the expense of somebody else who had dealt with them in good faith and who, to the knowledge of both of them, was expecting to get paid for their services. As an equitable remedy, it is often granted to somebody when the better option of a “legal remedy” isn’t available.  Compared to an equitable remedy, a legal remedy in a contract situation presents more of a black-and-white scenario: for instance, two people have a deal, “signed sealed and delivered” where one person promises to paint a house in exchange for the other person promising to pay him $100.  If the first person does paint the house and the other person fails to give him $100, then the law steps in and enforces the agreements. This is a legal remedy situation where the lines of obligation are clear and the court knows exactly what obligations it is called upon to enforce.

However, if the agreement isn’t written down anywhere, it means that we can’t see where one party had promised to paint a house in exchange for the other party paying him $100. Yet, in these situations, the party who has painted the house, for instance, is asking the court to make the other party hand him the $100. This is an equitable remedy situation and the only reason for the court to intervene here is to promote “fairness”: If the court fails to intervene here, then the party who doesn’t have to keep his promise will have been “unjustly enriched” at the expense of the party who took the trouble to keep his own promise. Yet, fairness or not, the court cannot intervene unless it is shown the evidence that one party had indeed promised to paint the house in return for the other party paying him $100 and also that the first party had gone ahead to actually paint the house as promised. Obviously, this is a more difficult situation because there is no valid written agreement in existence. In the real world out there, an agreement that is oral in nature rather than written falls into this category where only an equitable remedy is available to prevent unjust enrichment. Like Belushi’s agreement here.

Speaking of Belushi’s case, one can see how it is a pretty good candidate for an unjust enrichment consideration by the court. For instance, if someone like Belushi who lives in Los Angeles, would pay travel and lodging expenses in order to visit places of business in Chicago on several occasions on behalf of somebody else, it is more likely than not that he was doing so because of an agreement with that other person and also that he was expecting to get paid for his trouble. The scenario becomes even clearer when you add all the other things Belushi claimed that he did in the course of his promotional work on behalf of The Comedy Bar. However, as in any unjust enrichment case, a party in Belushi’s position would only be awarded the “reasonable value” of his services by the court. This means that Belushi may not get all the money he is asking for unless the court determines that such amount of money represents the reasonable value of his services.

Concerning the alleged trademark agreement, since the agreement was only a draft that never became a valid agreement, the attempt to recover the nearly $17,000 spent for the stage lights, for instance, will probably be treated as unjust enrichment claims.

Then there is the breach of contract claim concerning the alleged loan. To be sure, this one seems more problematic than the other two above for the simple reason that by their very nature loan transactions are typically written down. In the real world, an oral loan agreement is an awfully bad idea because anyone can guess that such an agreement could very easily be denied by the person who has the obligation to pay back the loan. In our case here, the alleged understanding between the parties that the loan would be “repaid in a timely fashion” won’t be enough to save the claim from this problem of proof. This really is a classic evidentiary nightmare. Certainly, the time to “memorialize” the agreement in this case was at the very beginning of the deal.  If the other side is refusing to play ball at this late hour, assuming Belushi’s allegations are true, well, anyone could have guessed that this was a real possibility in situations like this.

Now, how about the defamation claim against Chavoshi? For starters, a defamation action pertains to an alleged injury against someone’s reputation which causes damage to the victim. Here, as stated above, Chavoshi’s alleged “public campaign to malign” Belushi led to the cancellation of some appearances by comedians at other Belushi-branded comedy clubs. Yet, as a well-known celebrity, Belushi will likely be treated as a “public figure” for the purposes of a defamation lawsuit. Usually, as compared to an ordinary Joe, it is more difficult for a celeb to win a defamation claim in America because they’d be required to show that the other person either said something they knew to be false or that they didn’t care that, under the prevailing circumstances, what they said about the celeb was probably false. With an ordinary Joe, somebody could be on the hook for defamation by making a false statement about him even if the maker of the statement didn’t know that the statement they were making was false or that they were merely careless in making the statement. In Belushi’s case here, Chavoshi would probably be off the hook if what she said about Belushi was either true, partly true or could be regarded as merely her opinion of Belushi.

In the end, there is no telling just yet what the final outcome of this case will be. But from experience, cases like this one usually settle before trial because people in business would rather get on with their lives than be spending time and money in court in the company of wrangling lawyers. However, if passions remain high and the matter goes forward, the odds are that Belushi will fare better with the unjust enrichment claims than with the others.