Legend has it that shortly after Adam was created, he complained: ‘O, Lord! you have given the lion fierce teeth and claws, and the elephant formidable tusks; you have given the deer swiftness of legs, and the turtle a protective shell; you have given the birds of flight wings, but you have left me altogether defenseless.’ And the Lord said unto Adam: ‘I shall give you an invisible weapon that will serve you and your children better than any weapons of fight or flight, a power that will save you even from yourself. I shall give you the sense of humor.'”
[G. Swaminath, “Jokes a Part: In Defense of Humor,” 48 Indian J Psychiatry 177–180 (2006)]
I thought of that story, and the unique power humor has, literally and legally, to disarm many who might otherwise complain over any number of legal issues and perceived slights. For even though, as one writer noted, some “legal textbook[s like] Gatley on Libel and Slander [are ones where] neither ‘joke’ nor ‘humour’ makes the index” because “[w]ords are defamatory, or they are not” and “intention is irrelevant,” humor remains at the forefront of any codex of responses available to claim of infringement or defamation. While intent may be irrelevant, meaning, understanding, impact, and setting are not. We were reminded of this just recently in the case of Roy Moore v. Sasha Baron Cohen, where the United States Court of Appeals for the Second Circuit affirmed dismissal of a defamation action arising out of a mock comedic interview. Mo[ø]re on that case later (pun perhaps intended).
A. Needing A Good Laugh: Humor’s Place In Law & Society
Whether one looks at the pointed jabs of focused jests, the more extended, developed humor of satire and parody, or the jokes in between, humor has long been legally recognized as a defense, or at least a relevant factor of sorts here in the United States in both defamation and infringement cases. It has also been recognized as important for socio-political reasons as well:
Humor is necessary in a democracy for reasons other than serving as a device for spreading truth and attacking fools and knaves. In a free society, every few years, the populace engages in a wrenching struggle for power. Humor lets us take the issues seriously without taking ourselves too seriously. If we are able to laugh at ourselves as we lunge for the jugular, the process loses some of its malice.”
[Gutterman, “New York Times Co. v. Sullivan: No Joking Matter-50 Years Of Protecting Humor, Satire And Jokers,” 12 First Amendment Law Review 497 (2014) (quoting Gerald C. Gardner, The Mocking Of The President 12 (Wayne State University Press 1988).]
Though we have previously written at least once, twice, thrice, or more about parody and satire, we have never focused the analysis on the importance of the jokes or jests themselves. The Moore case sort of forces one to do that, just as Hustler v. Falwell did years ago. And recent matters, like Jack Daniel Inc. v. VIP Products LLC on the trademark side (on which the plaintiff is now seeking certiorari from the Supreme Court), and Sketchworks Industrial Strength Comedy, Inc., v. James H. Jacobs on the copyright side. These cases suggest that, if faced with defending another’s claims of one’s words, works or marks, understanding the meaning of saying “just humor them” may be an important lesson.
B. The Moore, The Merrier: One Case Showing How To Just Humor Them
So let’s dive in. Here, simply, is what happened in Moore:
[Sasha] Baron Cohen created, co-produced, and co-wrote Who Is America?, a television program that aired on Showtime. As part of the show, Baron Cohen and his team convinced Roy Moore (‘Judge Moore’), a former Chief Justice of the Supreme Court of Alabama and a former Senate candidate from Alabama, to fly to Washington, D.C. to receive a prize in honor of his support for the state of Israel and to be interviewed by an Israeli television program. It was a ruse: He was instead interviewed by Baron Cohen, who presented himself as an Israeli anti-terrorism expert and former intelligence agent. The episode of the program in which the interview aired led into the interview with news clips reporting allegations from the time of Judge Moore’s Senate campaign that he had engaged in sexual misconduct as an adult, including with one woman who was fourteen at the time. During the interview itself, Baron Cohen, in character, described a fictional device that the Israeli military had purportedly developed to detect underground tunnels, which would also ‘identify other abnormalities,’ including ‘sex offenders and particularly pedophiles,’ by picking up on a certain ‘enzyme’ that they secrete at ‘three times the level of non-perverts.’ App’x 97-98. Baron Cohen then produced a wand-like object that was supposed to be that device and waved it over Judge Moore, at which point it beeped. After a tense exchange between the two, Judge Moore exited the set, amid protestations by Baron Cohen that he was not saying that Judge Moore was a pedophile.”
[More Affirmance Order at page 3 (line 1) through page 4 (line 11)]
Based on those facts, Judge Moore sued. The legal question presented by the defamation claims included whether a reasonable viewer would understand the program as making factual claims:
The determinative issue is thus whether the segment could ‘reasonably have been interpreted as stating actual facts about’ Judge Moore. Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 50 (1988); see also Milkovich v. Lorain J. Co., 497 U.S. 1, 17 (1990). We agree with the District Court that the segment at issue was clearly comedy and that no reasonable viewer would conclude otherwise. See Moore v. Baron Cohen, 548 F.Supp. 3d 330, 348 (S.D.N.Y. 2021). The segment opened by referencing news clips of the allegations that Judge Moore had engaged in sexual misconduct, including with minors, and what followed was an attempt to comment on those allegations through humor. Baron Cohen may have implied (despite his in-character disclaimers of any belief that Judge Moore was a pedophile) that he believed Judge Moore’s accusers, but he did not imply the existence of any independent factual basis for that belief besides the obviously farcical pedophile-detecting ‘device,’ which no reasonable person could believe to be an actual, functioning piece of technology. ‘Humor is an important medium of legitimate expression and central to the well-being of individuals, society, and their government. Despite its typical literal “falsity,” any effort to control it runs severe risks to free expression as dangerous as those addressed to more “serious” forms of communication.’ Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 5:5.2, at 5-130 (5th ed. 2017).”
[Moore Affirmance Order at 9 (line 17) through 11 (line 2)].
This fairly straightforward result seems wholly consistent with US First Amendment principles, and perhaps such a defense is simply a constitutional requirement.
C. Law Ain’t No Joke: Starting To Look Seriously At Humor As An Element Of Proofs In Legal Cases
But perhaps not—and I say that because humor as a defensive or responsive consideration is not limited to the context of defamation of public figures. Humor is also central to trademark infringement claims through notions of parody, and as part of copyright claims through satire. And, of equal interest, humor impacts in these contexts outside the U.S. constitutional system. Perhaps something more than the United States’ Constitution’s First Amendment and American notions of jocularity are present here.
(i) All Joking Aside—How Defamation Cases Deal With Humor
It has been accepted that defamation law “isn’t supposed to change based on the method of communication” and that “only statements of fact can be libel[, slander or defamation],” according to the authors of It’s Hard To Prove Libel When Everything’s A Joke. But “[j]okes, opinions, and even statements that the author mistakenly believed to be true are protected. So if your statement is made in a setting that judges and juries think of as a freewheeling circus for insults, gags, and ephemera, it gets tough to prove” defamation claims. Id. That is true even though an Irish judge in Donoghue v. Hayes,  Hayes, Irish Exchequer, 265, 266 wrote that “if a man in jest conveys a serious imputation, he jests at his peril,” quoted in Dall v. Time, Inc. (1937).
One can see these issues emerge in cases outside the United States.
For instance, in the UK, defamation cases now have gotten a little tougher to prove defamation than they were when the New York Times made its 2000 references to London as “the town called Sue’” and “the libel capital of the world.” That city’s status has changed, at least a bit, because of the [UK] Defamation Act 2013, which requires, under Section 1(1) that the allegedly defamatory words go beyond being capable of injuring the subject—they must, have caused or be likely to cause “serious harm” to the reputation of the claimant. Likewise, under Lachaux v Independent Print Ltd (2019), “the seriousness of the harm is to be determined by reference to the actual facts about the statement’s impact and not just the meaning of the words,” according to one commentator. As some have concluded, these and other 2013 statutory changes have “eroded the apparent problem of Libel Tourism” to London’s courts.
Conversely, jokes and satire have not always provided Australian comedians with as robust protections as those enjoyed by the irreverent elsewhere, though Australia adopted in 2021 statutory changes to its defamation laws to “now include a public interest defence and a serious harm provision, both of which promise room for manoeuvre for political satirists,” according to one legal watcher. Still, there is a sentiment down under that the changes are not enough, with fee-shifting and other financial disincentives remaining to just going for the laugh: “Even with the new changes to defamation laws, many up-and-coming satirists without the legal backing and expertise of media or production companies will still face challenges to safely practice their craft” and remain “too afraid to express what our communities feel through satire for fear of government or legal reprisal,” according to that observer. And even the comedians themselves are seeking legal advice. If they sought it from Simon Carty, they might be pleased to learn that:
Australian courts … believe Satire is to be protected as free speech and its humorous nature means that it is free speech the Australian Court hold that something cannot be considered defamatory if it is outrageous or humorous.…
The Australian court when faced with Defamatory Humour noted that words are often used ‘not in their natural sense …but extravagantly, and in a manner which would be understood by those who hear or read them as not conveying the grave imputation suggested by a mere consideration of the words themselves’ Australia Newspapers v Bennett ( A.C. 284, 287 (Eng.)
In Coleman v John Fairfax Publications Pty LTD ( NSWSC 564 (25 June 2003), a satiric article about a high profile/celebrity rugby coach the court reasoned reasonable reader would find nothing in the article to be taken seriously and the ‘article was self-evidently absurd’ and ‘simply a joke.’
[Simon Carty, Review Of The Defamation Act 2009]
Conversely, in Ireland, the Defamation Act 2009 did not expressly provide a “defence in the act of artistic expression, certainly no defence for comedic output or satiric commentary,” according to Simon Carty.
There are just some examples of how humor has been dealt with in various countries, and all are invited to let me know how it is dealt with in your jurisdiction in defamation cases.
(ii) For Laughs: Real Infringement Cases Impacted, In The US and Elsewhere, By Claims To Humor To Show Fair Use Or Non-Confusion
Humor has also come up as a relevant factor outside the defamation context, and specifically within the trademark and copyright context. As one law review put it (at 509), “several jokers have even found themselves in intellectual property battles.” Remember here that technically, “[p]arody is not a defense to trademark infringement, but a factor to be considered when analyzing a likelihood of confusion,” as a US court noted just a few months ago. Still, it is worth reviewing.
On the trademark side, one US court decision upheld the parodist’s right to remain free of infringement and dilution liability, noting that “gentle, and possibly even complimentary” jokes directed at another’s mark remain protectable parody. Another US court opinion has also noted that a “trademark parody reminds us that we are free to laugh at the images and associations linked with the mark . . . [or provides] entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.” In fact, the stronger the mark, the bigger the joke and the better defense, as noted by another court. On the other hand, the joke, parody, or satire needs to be detectable and understood, as one court noted in saying that “[t]he Court is unprepared to conclude that Feyoncé rises to the level of parody, as there is no evidence in the record to suggest that Defendants intended their products to convey a message about or critique of Beyoncé.” That same court also held that even a mere pun may create a protected fair use if “the joke is clear enough to result in no confusion under the statutory likelihood of confusion analysis.”
Many of these issues on the trademark side could be addressed in the Jack Daniels matter if the US Supreme Court grants cert. According to the cert. petition (at 5), “Respondent VIP Products LLC copied Jack Daniel’s marks and trade dress to make a dog toy, ‘Bad Spaniels,’ that imitates a Jack Daniel’s whiskey bottle while adding poop humor.” The district court originally found the VIP’s use likely to confuse as to source or origin but was overruled by the Ninth Circuit on 1st Amendment grounds. After remand, the district court “begrudgingly” ruled in favor of VIP, while “lamenting that the Ninth Circuit’s test ‘excuses nearly any use less than slapping another’s trademark on your own work and calling it your own.’” Cert. Petition at page 5 (quoting Memorandum Opinion, copy at Appendix, page 18a). After the Ninth Circuit summarily affirmed (Appendix at 2a), plaintiff sought Supreme Court review because in its view:
The Ninth Circuit’s infringement holding unjustifiably transforms humor into a get-of-out-the-Lanham-Actfree card. To be sure, everyone likes a good joke. But VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill. The likelihood-of-confusion test already reconciles the competing First Amendment interests of mark holders and infringers; the Ninth Circuit’s test unjustifiably protects even intentionally misleading trademark use and elevates the infringer’s supposed free-speech interest above the mark holder’s.
For those interested in the well-supported arguments that Jack Daniels makes, read the entire cert. petition, as it provides both descriptive and visual support for its position that the Ninth Circuit’s humor exemption for trademark infringement liability may go too far. But, then again, comedy is always about pushing boundaries, so stay tuned because “Response due September 16, 2022,” which one imagines will hammer home the notion that, by creating a bottle-shaped doggie chew toy that is not even in the beverage category, VIP is not copying a liquid product’s bottle trade dress at all.
There are, likewise, US copyright analogs focused on jokes and humor as central to avoiding infringement liability. For instance, in the Sketchworks case decided May 12, 2022, a federal district court in New York gave plaintiff judgment on the pleadings, holding that the new play Vape was a non-infringing parody of Grease and that “parody has an obvious claim to transformative value” because, “’[l]ike less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.’” (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). Still, one wonders whether the record Jack Daniels made as to trademarks will be similarly made by those seeking greater protection for pre-existing works in the copyright context as well.
Some European countries have generally given such defenses a “narrower treatment” when presented with parody and other creatively humorous works, according to Bill Patry (at 317). Nevertheless, as I have written about before as to the notion of pastiche, commentators have observed that the EU has broadened somewhat its historical approach, at least in copyright:
On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Case C-201/13 Johan Deckmyn and Another v Helena Vandersteen and Others (‘Deckmyn’)…[which] clarified that ‘parody’ is an autonomous concept of EU law… that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery.
[Eleonora Rosati, “Just a laughing matter? Why the CJEU decision in Deckmyn is broader than parody”(2015) 52(2) Common Market Review 511, 518 (2015)]
Using Deckmyn as a jumping-off point, others, such as Marta Carmona López, have called for an explicit recognition in the EU of trademark parody as well, and indeed have suggested that parody in trademark not be restricted by a humor/mockery criteria.
Relying on cases like Esso Française SA v Association Greenpeace France, Cour d’appel de Paris 4ème chambre, section A Arrêt du 16 novembre 2005 (which, as an aside, was followed by the Indian High Court at Delhi in Tata Sons Limited vs Greenpeace International & Anr on 28 January 2011 (para. 24, 41-43), to refuse to enjoin use of variants of the Tata marks that was “hyperbolic and parodic”), Lopez notes (at 26) that social messaging that parodies or alters another’s mark are non-infringing. In fact, for that author (at 32) “parodies can have many different purposes, they can be created to convey a message of social, political or consumer interest, they can be an artistic expression of its author or they can be created with the mere intention of being sold.” Others, like Lucas Fischer (at 21-22) and Sabine Jacques (interestingly also by chance (or kismet) at 21-22), have also noted more recently the social value of protecting parodies and parodists in the EU to a much more American extent. But that broadening has not occurred everywhere. In Italy, for instance, “the Italian Copyright Statute does not contain a general exception for ‘parody, caricature and pastiche’ pursuant to Article 5(3k) of the InfoSoc Directive,” as noted by Gabriele Spina Ali.
As Professor Rosati has further noted, it is not entirely clear whether the expression of humor requirement goes to the parody creator’s intent or the effect on the reader/viewer. Id. (“With particular regard to this last requirement, when the CJEU stated that a parody must “constitute an expression of humour or mockery” it did not clarify whether this means that a parody must possess a humorous intent or also produce – as the AG Opinion appears to suggest – a humorous effect.”)(italics in Rosati). This has become a heightened issue in the EU where, unlike the US for the most part, moral rights may give creators of the underlying work a right not to have their works associated with views they find repugnant, which can come up when the parody uses the underlying work without that work being the subject of the parody. Id. (“As regards the subject of a parody, this can be either an earlier work (so to make a ‘parody of’) or something/someone else (so make a ‘parody with’, as was the case in Deckmyn)” and “At paragraph 31 of the Deckmyn decision it is stated that “holders of the rights provided for in Article 2 and 3 of Directive 2001/29 … have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with [a discriminatory] message.” Although the CJEU never mentioned the phrase ‘moral rights’ in its ruling, paragraph 31 might be read as referring to them.”)
The parody “of” and parody “with” distinction is one that has complicated US law, as I have noted previously more than once. And it has also been detailed nicely by Lisa Hein as she has looked at Dr. Seuss Enterprises v. Penguin Books USA, Inc. (where the court considered whether the producers of The Cat NOT in the Hat! A Parody by Dr. Juice) and Suntrust v. Houghton Mifflin Co. (concerning the novel The Wind Done Gone, which “’reimagines the story of Gone with the Wind by telling it from the perspective of Scarlett O’Hara’s black halfsister”). As Hein noted (at 8-9), her takeaways from the divergent decisions (Seuss finding infringement rather than parody and Suntrust finding protectable parody), are that the “different results of the Dr. Seuss and Suntrust cases …show how subjective a decision regarding parody and fair use privilege can be.” Some, like Hein, attribute those distinctions to differences in judicial taste or judges’ drawing lines too finely between parody and satire.
This notion of subjectivity in legal analysis of what is fair use remains with us, as seen in the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, 11 F. 4th 26, 41-42 (2d Cir. 2021)(“the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective”). That decision is being taken up by the Supreme Court this fall now that cert. has been granted (matter 21-869). Though Warhol is not about humor or parody per se, its analysis could well impact on how these related are addressed in the future here in the United States and elsewhere.
D. Hey, What’s The Punch Line?: Some Final Thoughts
As one critic of the Ninth Circuit’s Seuss decision has noted, in repeating “the scorn [he] heaped upon it…20 years ago,” fair use “is a case-by-case determination,” so “there will always be cases that fall outside the mainstream of judicial thought.” In the end, “[l]egal protections and restrictions of humor are ad hoc. They do not emerge from an integrated system of laws.” Robert Mankoff, “Judging Humor,” The New Yorker (2013); see also Laura E. Little’s “Just a Joke: Defamatory Humor and Incongruity’s Promise” and “Regulating Funny: Humor and the Law.” So, remember that, when we face certain difficult legal problems, they are “[n]ot nearly as difficult as playing comedy.” Now, even doctors who have long said that laughter is the best medicine, with some science beyond that notion, are being challenged to ask whether a physician can be charged with malpractice for including humor in physician/patient interactions. See Scott J. Schweikart, JD, MBE, “Could Humor in Health Care Become Malpractice?,” 22 AMA Journal Of Ethics 596-601, July 2020. Lawyers who don’t “get the jokes” role in these sorts of cases may face like problems.
Clearly, the above discussion suggests that the humor of a statement, mark, or work of authorship deserves consideration as part of a good defense against defamation or infringement. Yet, as true as that may be, that “real judges and lawyers are not comedians,” and “legal players in the courtroom are rarely funny,” I have devoted many a post here to the proposition that “the lawsuits that make their way into the formal legal process can be [funny],” and fun, as noted in The New Yorker. While many contexts and countries have been noted above, this little survey falls short of proving that “humor is a universal language,” or that, as we started this post, it is a god-given attribute common to humanity. (But I did learn that the phrase “laughter is the best medicine” itself has biblical roots, and have now passed that along).
Thus, as much as I’d like to claim that this article has given you a foolproof system for understanding how to mount a humor (if not humorous) defense, I cannot make that claim. As Patry noted (in his section on parody under US law at 328-33) “[t]he fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line.” Hopefully, this post gets them a little closer to putting it in the right place….and, if it doesn’t, just keep practicing on your own as best you can and humor me.