Legal Terms of Respect #3: It was only a joke!

The 3rd installment of my big takeaways about slander, libel, and copyrights from intellectual property attorney Renee Duff’s presentation at the NYC Self-Publishing Expo on Oct 22.  This one is inspired by her, and filled in a little by me!
“I do not agree with what you have to say, but I’ll defend to the death your right to say it.” – Voltaire
(DiGrazie doesn’t agree 100% with Voltaire but thinks there is an important principle worth refining and defending here)

Satire, parody, and joketelling.  Intellectual property attorney Renee Duff mentioned that satire is a “protected area” for writers, and that if a work is judged to be satire, a writer can take more liberties with the truth about people and places.  But she mentioned it only in passing.  Well, it seems to me that this is an important area of the law for us literary types.  Literature, as we know, has the power to affect the way a society thinks and thus, over time, to create new realities.

But only if we feel safe to color outside the lines.  Maybe even, to shake up some people.

My creative bent is not heavily into jokes, satire and parody… (you’d have known this for sure had I included my joke about our current and three recent U.S. Presidents.  See, Obama and Clinton decided to take Papa Bush and Baby Bush out for a night on the town down near the harbor and – no, let’s not go there with them!)

…but I recognize why these devices are so important.  In the U.S. these devices are constitutionally protected by the First Amendment to the U.S. Constitution.  So I decided to spend a little time doing some research on this to share with you.

What do laws in the U.S. protect?  Let’s talk three categories:  Jokes (which you may or may not incorporate into your literature); Parody, and Satire.

For your creative outburst to be legally regarded as a JOKE, you must be able to establish that the primary intent is to elicit a reaction of amusement.  It helps a lot if there is something about the joke itself that makes it clear that it is not intended as a representation of fact.  So, the idea of four Presidents getting together at a bar near a harbor and attracting the attention of amorous seafaring male patrons (oops! Did I let that slip?) would easily qualify my example above as a joke (just like talking animals, or some other outrageous premise).  Four Presidents out on the town together would be newsworthy.  Clearly, this didn’t really happen or we’d have heard about it.  But be careful – beyond making the farcical element apparent, you must also intend to amuse.  That doesn’t mean everyone has to find it funny, but you better make sure someone could reasonably expected to see humor in your joke (and not just the intent to belittle someone).

And by the way, joke-telling that could be taken as sexual harrassment directed toward someone you’re repeating or sending the joke to, could get you in legal hot water, even if someone thought it was funny.  So bottom line, DiGrazie encourages us all to not be jerks!

I’ll tackle PARODY and SATIRE next time around.  Yes, there’s a difference between them.  And maybe, if I’m loaded on caffeine, I’ll tell you the punchline of my joke.  But I sort of doubt it.


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