The Difference Between a Bad Joke and Not a Joke

by Michael C. Dorf

Last week's oral argument in Jack Daniel’s Properties, Inc. v. VIP Prods., LLC was difficult to handicap. On one hand, various Justices seemed skeptical of the argument for plaintiff Jack Daniel's that the Court should completely reject the test used by the Ninth Circuit and originally developed by the Second Circuit--under which the First Amendment imposes a threshold requirement for plaintiffs asserting that expressive works infringe trademarks. On the other hand, there was uncertainty about how to integrate that test--or any other test that gives ample protection for free speech--with the statutory requirements of the Lanham Act. I remain of the view I expressed in my Verdict column in advance of the argument: parodists should be given wide latitude and thus I'm sympathetic to the defendant maker of the poop-themed dog toy "Bad Spaniels."

Rather than parse the oral argument closely, however, I want to devote today's essay to something Justice Kagan said in colloquy with the lawyer for the respondent/defendant VIP. Some of the Justices shared my skepticism that anybody would actually think that Jack Daniel's was behind the Bad Spaniels dog toy. Justice Alito was especially forceful in painting a portrait of the hypothetical meeting of Jack Daniel's executives at which they would have approved the poop jokes (although Justice Alito somehow seemed to think that the Bad Spaniels toy jokes about urine, despite the prominent "Old No. 2" on the label. But I digress.)

Justice Kagan, by contrast, seemed to think that Jack Daniel's has a strong case, and not just because of the survey data showing some actual confusion. She asked "what is the parody here? . . . maybe I just have no sense of humor but . . . what's the parody?" The lawyer for VIP answered that "[the] parody is multifold," but the only dimension that he ended up exploring with Justice Kagan was his claim that Bad Spaniels pokes fun at Jack Daniel's for taking itself too seriously. Justice Kagan didn't think this was a plausible answer given that VIP's other dog toys deploy puns based on products from a whole range of companies. She listed "Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, [and] Mountain Drool," expressing incredulity that all of the parodied beverage makers take themselves too seriously.

That's fair enough, I suppose, but I think at bottom Justice Kagan was confusing two categories: jokes that she doesn't find funny and not-jokes at all. That's a distinction that could have significance in a number of contexts.

Why might it matter to the law whether some expression is a joke? Because the First Amendment provides robust protection for statements of opinion but less protection for false or misleading statements of fact. Thus, if VIP said or implied sufficiently to confuse enough consumers that Jack Daniel's makes the Bad Spaniels toy, that (express or implied) assertion of fact about the product's origin could be lawfully proscribable as a matter of trademark law.

The distinction between jokes and other kinds of expression is relevant to other areas of the law as well. For example, in Campbell v. Acuff-Rose Music, SCOTUS held that the 2 Live Crew version of Roy Orbison's song Pretty Woman was a parody and thus fair use within copyright law. Crucially, the Court noted that a work can be a parody (and presumably, more broadly, a joke) without being very good, declining to evaluate the quality of the 2 Live Crew song but explaining how it is possible to discern within it at least some commentary on the Orbison original.

The distinction between bad jokes and not-jokes can also matter outside of intellectual property law. Consider the First Amendment limits on tort liability for defamation or intentional infliction of emotional distress (IIED). If Hustler magazine had actually seriously asserted that Jerry Falwell had had sex with his mother in an outhouse, that would have been clearly defamatory and alternatively a permissible basis for an IIED claim. However, as the Supreme Court rightly held in Hustler v. Falwell, the claim--which appeared in a cartoon in the magazine as a parody of a line of advertisements for Campari--was obviously intended and would obviously be received by readers as a joke rather than as a statement of fact.

It is possible, of course, to falsely claim "just kidding" when one was in fact serious. A typical defendant cannot successfully defend against a robbery charge on the ground that his statement "your money or your life" while he pointed a gun at a terrified stranger was just a joke. If the defendant was actually just kidding--or perhaps engaged in a bit of performance art--that could negate the intent the prosecution needs to prove beyond a reasonable doubt to obtain a robbery conviction, but it might not be enough to avoid a prosecution for making threats. Next month, the Supreme Court will hear a case that asks whether the true threats doctrine in First Amendment law requires that for a statement to be proscribable the threatener must have intended the statement as a threat (or known it would be so perceived), or whether instead, it suffices that a reasonable addressee would perceive a threat.

Let's put that question to one side and stick with contexts in which the speaker does intend a joke. We might wonder whether a joke could be so bad as not to count as a joke at all. Consider a powerful scene featuring Robert DeNiro and Joaquin Phoenix from the brilliant but disturbing film Joker, in which Phoenix's character Arthur Fleck tells the following joke:

Knock knock.

Who's there?

It's the police, ma'am. Your son has been hit by a drunk driver. He's dead.

Fleck laughs while the audience is horrified, and DeNiro's talk-show-host character Murray Franklin chastises Fleck: "That's not funny, Arthur. That's not the kind of humor we do on this show." But note that Franklin doesn't say "that's not a joke." Nor would it be accurate to say it's not a joke. Fleck clearly thinks it's funny. And from the perspective of the film's audience (as opposed to the studio audience within the film), Fleck and the filmmakers are making a kind of meta-joke about knock-knock jokes in the same way (though much much more darkly) that the joke to which the punch-line is "no soap radio" is an absurdist joke about jokes.

Is Fleck's joke funny? The film's audience is meant to think that it reveals the extreme alienation that drives him to extreme violence. Whether the joke is actually funny is largely beside the point. It's meant to function as a joke, even if a disturbing or repellant one.

Without necessarily defining what makes a joke a joke, we can see that Bad Spaniels is obviously intended as a joke. At the most basic level, it says it contains but does not in fact contain any dog poop. The toy makers are just kidding when they label the toy as containing dog poop. That in itself makes the expression a joke, even before we get to the fact that young children find poop jokes hilarious and also tend to like dogs. Meanwhile, the rhyme with Jack Daniel's is vaguely humorous (or at least intended to be humorous) in the way that puns are.

Perhaps if other Justices hadn't turned the argument in a different direction, VIP's lawyer might have had the opportunity to explain how the Bad Spaniel's toy was making a joke along those various dimensions, whether or not Jack Daniel's takes itself seriously. If he had, perhaps Justice Kagan would have gotten the joke(s), even if she didn't think it/them particularly funny.