When it comes to humor, everyone is his or her own judge. If you decide that something is funny, it is for you. If you don’t, it’s not. End of story. That is, unless you are an actual judge with an actual case involving humor and the law. Then it’s a whole different story, one that I’m going to let Laura E. Little, a law professor at Temple University’s Beasley School of Law, tell.

Professor Little’s scholarship integrates law, linguistics, and philosophy. She has concentrated her study recently on the legal regulation of humor, and has studied the topic both in the U.S. and Australia. Take it away, Laura:

Law and Humor. What springs to mind? If you’re reading this blog, perhaps New Yorker cartoons with judicial opinions as punch lines

or lawyers playing the courtroom for laughs.

Alas, real judges and lawyers are not comedians. But if the legal players in the courtroom are rarely funny, the lawsuits that make their way into the formal legal process can be. In adjudicating disputes about humor, courts often must decide whether a particular communication is, indeed, funny. The cases are diverse, based on theories ranging from contract, trademark infringement, and sexual harassment to defamation. A remarkable trend appears in these cases: they tend to track wisdom about humor developed by decades, even centuries, of humor scholars. Humor scholars have toiled to find the essence of humor, the quality that transforms a communication into something that inspires laughter. Most scholars agree that incongruity is a necessary (though not sufficient) part of all comedy. The unlikely juxtaposition of two parts of life, it turns out, gives the spark that creates a joke. Of course, the conditions must be right for the spark to work: timing, context, and the like. Thinkers going back to Plato have observed that humor often takes on a superior quality, serving to bludgeon or ridicule others, and beginning with Freud they have observed that it releases anxieties about uncomfortable or taboo topics, such as sex, excrement, death, or incest. Where value judgments are expressed, many scholars suggest that, though superiority and release may perform important social functions, they ultimately create a lesser form of humor, a form of humor that doesn’t tend to add to our culture in an enduring way. Case law reflects these same intuitions: courts protect humor that is rich in incongruity and restrict or punish humor laden with superiority or taboo topics. Courts might be cast in this humor-evaluating role when one litigating party alleges breach of contract and the opposing party argues that she was only making a joke, not intending to create a contract. Sometimes the joke/contract is uttered during a state of intoxication and scribbled on a cocktail napkin. Other times, the parties might be fighting over an advertisement. Take, for example, the decision of the United States District Court for the Southern District of New York in Leonard v. PepsiCo. Leonard was about a promotional campaign encouraging consumers to collect “Pepsi Points” to redeem for cool stuff (“valuable merchandise”). In the campaign, Pepsi ran a TV commercial suggesting that one could redeem Pepsi Points for a Harrier Jet. The commercial featured a teen-ager emerging from a trip to school in a jet, exclaiming,

Words then appear:

The plaintiff in Leonard resolved to obtain the jet, somehow accumulating what he needed to take Pepsi up on its “offer.” Pepsi refused to cough up its end of the bargain—a Harrier Jet—arguing that the ad had been a joke. Confronting this defense, the court earnestly evaluated whether “the commercial is funny.” How did the court do this? By scanning the ad for incongruities. And it found plenty. Concluding that the ad was funny and that the plaintiff had no contract claim, the court highlighted: • The suggestion that Pepsi could inject the drama of “military and espionage thrillers” into otherwise “unexceptional lives” • The “highly improbable pilot” in the form of a teen-ager who “could barely be trusted with the keys to his parents' car” • The mismatch between school transportation and a piece of military equipment designed to “attack and destroy surface targets” • The improbability that one could actually “drink seven million Pepsis (roughly a hundred and ninety Pepsis a day for the next hundred years)” In short, the notion that Pepsi made a serious offer of a Harrier Jet was simply too unbelievable, or incongruous, to call for legal enforcement. Incongruity acts as a similar beacon in trademark-infringement cases. Key to an infringement claim is consumer confusion. In deciding whether to impose liability, courts inquire about the “likelihood of confusion” between a trademark-protected product and another product. What does this have to do with humor? Well, often the alleged infringer argues that the claimed infringement is actually a parody of the trademark-protected product. If the allegedly infringing product is indeed a parody, trademark law protects it from liability. Evaluating parody defenses, courts follow a parody definition that tracks the notion of incongruity: to be protected, a parody must evoke the trademarked product but at the same time must be so outlandish that consumers assume there’s no way that a producer would market their product in this way. Cases in this area are legion. Parodists market the products using something close to (or identical to) a classic logo, but with a new name. Pet fragrance marketed under the name “Timmy Holedigger” (rather than Tommy Hilfiger),

sex toys marketed by Genital Electric (rather than General Electric), and posters of a pregnant Girl Scout (rather than a Scout who honored the admonition to “be prepared”)

join the many litigated parodies. For the purposes of trademark law and humor theory, the interesting part here is how courts fixate on incongruity to resolve the trademark dispute. They ask: How strange and unexpected is the product that the parodist created? For full appreciation of these trademark cases, one must note that several have bizarre juxtapositions—incongruities—but nevertheless fail to win the court’s endorsement as protected parody. Consider the court’s finding that the sex-toy manufacturer created a likelihood of confusion over the General Electric trademark. In holding that the manufacturer was liable to General Electric, the court suggested that a consumer might reasonably conclude that General Electric—as a profit-maximizing manufacturer of products for the family homestead—would affix the same logo to a dildo that it uses for a refrigerator. Did the court seriously believe this? Perhaps a better explanation was the court’s concern that some damages were due to General Electric, given the taboo nature of the subject matter and the possibility that the parody sullied the revered trademark. Could the court be acting on its distaste for release humor on taboo topics? Distaste for sexual topics, as well as aversion to mean-spirited, insulting humor, clearly motivates courts grappling with the form of sex discrimination in employment known as “hostile work environment” harassment. Indeed, deterring this type of behavior is hardwired into the definition of the discrimination claim: the whole idea is to discourage abusive practices that focus on sex and belittle the victim. But, even in this area, clever juxtapositions can sometimes save a defendant from liability. Consider, for example, the defendant who escaped liability for a barrage of harassing comments, many of which had a bizarre, pun-like quality, such as, “Hey honey, how many wheels are in your menstrual cycle?” And then, finally, there are the defamation claims. These are a more complicated breed of humor cases—in part, because the Constitution’s free-speech protection, the First Amendment, plays prominently. Just as the topic of Shakespeare can hijack literary analysis, the First Amendment can hijack any legal analysis. (Law professors—in their most free-spirited abandon—call this “First Amendment exceptionalism.”) But even in the tangled legal doctrine surrounding the First Amendment, courts fall back on incongruity. Polygram Records v. Superior Court provides a classic example. Polygram arose from a Robin Williams riff about wine snobbery and race,

developed around “the fantasy of a black wine ‘tough enough’ to be advertised by ‘Mean Joe Green.’ ” Rejecting the defamation suit, the Polygram court concluded that Williams’s “suggestion that the hypothetical wine is a ‘motherf*ck*er,’ black in color, tastes like urine, goes with anything ‘it’ damn well pleases, or is ‘tough’ or endorsed by ruffians are obvious figments of a comic imagination impossible for any sensible person to take seriously.” Following similar reasoning, other courts have dismissed defamation claims based on comedic expression, citing the presence of imaginative distortions of reality, illogical references, and physically impossible depictions that a reader could not reasonably interpret as a factual suggestion tending to blacken the plaintiff’s reputation. Legal protections and restrictions of humor are ad hoc. They do not emerge from an integrated system of laws. One cannot do a meaningful legal research search using the words “law and humor” or “law and comedy.” Nonetheless, patterns of regulation emerge from the statutes and court cases that touch humor. The most notable pattern is the tendency of legal rules to privilege humor that reflects incongruity and to suppress or restrict humor that disparages others or concerns topics associated with release humor, such as sex, excrement, violence, and death. What makes these patterns remarkable is that the hapless machinery of the common law has unwittingly made its way to the same distinctions and insights reflected in years of research by humor scholars on the topic of incongruity, superiority, and release humor. It’s a welcome surprise when law tracks common sense, and even more gratifying when there’s a venerable set of non-legal scholars whose work supports law’s enterprise. For the benefit of both law and humor, let’s hope courts keep up the good work.

Thanks, Laura. Case closed.

P.S. But in case you’d like to review the proceedings in more detail, here are some references.

Laura E. Little’s “Just a Joke: Defamatory Humor and Incongruity’s Promise” and “Regulating Funny: Humor and the Law.”