James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “Just Humor Them: Jests, Jokes, Satire, and Parody in Infringement and Defamation Cases.”

Following is an excerpt:

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. …

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