Louis C.K. Is Trying to Outlaw Leaks. Can He Do That?

Many comics despise leaks. Louis C.K. is banning them outright.

At his surprise four-night residency that began Tuesday at the Acme Comedy Company in Minneapolis, those able to score tickets got something unexpected in the bargain: a gag order.

A statement released by the venue on Louis C.K.’s behalf threatened would-be leakers of material from the set with legal penalties, asserting that its contents “may not be copied, translated, transmitted, displayed, distributed, or reproduced verbatim” in “any form, media, or technology now known or later developed” without written consent.

Louis CK is performing in Minneapolis soon, and the comedy club sent out a notice because he doesn't post tour dates anymore. In addition to adding YONDR pouches to his gigs, he also requires them to share this copyright notice that I have never before seen a comedian share/post pic.twitter.com/ya8mqwXPE0

The notice was just the latest strike in an escalating war, waged by comedians who perceive the spread of jokes beyond their native borders — typically the four walls of a comedy club — as a financial and reputational threat.

“They spend a year or two working on material that is the basis of their income, and then it ends up in an unfinished form online for free,” said Noam Dworman, owner of the Comedy Cellar in New York and a friend of Louis C.K.’s. “It’s terrible for them.”

Over the past several years, cellphone bans, intended to curb such leaks, have become standard practice, governing performances by brand-name acts like Chris Rock, Ali Wong, Kevin Hart and Hannah Gadsby. Louis C.K., a longtime proponent of the bans who has been the target of leaks in the past, also imposed one at the Minneapolis gigs.

But by seeking to prohibit not only recording but all reproduction of his jokes, “in whole or in part,” in any medium, he is pushing the demand for discretion to a new extreme. And he risks further antagonizing audiences amid a tumultuous comeback — following an admission of sexual misconduct in 2017 and a nine-month hiatus — that has drawn widespread criticism, both for its timing and its taste level. After a leaked set last December, he drew a backlash for mocking survivors of the Stoneman Douglas High School shooting.

And then there is the technical question: Is such a ban even legal?

“It’s overreaching in terms of copyright law,” said Jeanne Fromer, a law professor and co-director of the Engelberg Center on Innovation Law and Policy at New York University. “The law grants certain rights, but it withholds certain others.”

Fromer noted that the language in the ban declares Louis C.K. the owner of all “jokes and sketches” in his set, but the question of whether one can copyright a joke is controversial and depends on secondary questions of the joke’s originality, length and whether it is essentially an idea, which is not protected by copyright.

The ban also raises questions of fair use, one of the classic defenses against copyright infringement. Anyone can reproduce elements of a copyrighted work — even one owned by a famous comedian — so long as the copying is done for a limited and transformative purpose, like commentary, criticism or parody.

Jonathan Handel, an entertainment lawyer in Los Angeles and a lecturer at the University of Southern California’s Gould School of Law, said a lawsuit brought against someone who violated the ban would hinge on how much of the material was copied, in what form and for what purpose.

“If it’s someone who tweeted a couple of sentences from a gag, he would get laughed out of court,” Handel said.

But even if Louis C.K.’s argument is questionable from a copyright perspective, that doesn’t mean fans are completely off the hook.

Both legal scholars noted that by requiring audience members to agree to his terms before the show, he may effectively be binding them to a contract, giving him broad (but not unlimited) enforcement powers.

“In return for getting to see the performance, Louis C.K. can say, ‘I expect you to do something else for me,’” Handel said. “There is a lot that one can agree to in a contract that goes beyond what the law imposes.”

Ultimately, Fromer said, the chances of a lawsuit alleging copyright infringement, or breach of contract (and of that lawsuit making it to court), are slim. But, for Louis C.K., it may be the threat that counts.

“I think he just wants to be able to try out a joke and not have it become a national news story,” said Dworman, the Comedy Cellar owner. “With the microscope that he’s under, I don’t know whether he’ll be successful. But he’s clearly doing everything that he can.”



Reggie Ugwu is a pop culture reporter covering a range of subjects, including film, television, music and internet culture. Before joining The Times in 2017, he was a reporter for BuzzFeed News and Billboard magazine. @uugwuu

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