Here at Law Law Land, there are a few pearls of wisdom we like to repeat — perhaps to a fault — just because they are so helpful and right. Copyright law doesn’t protect ideas, only the expressions of ideas. Being legally right only matters if you can afford to prove it. And, perhaps most important of all: don’t mess with the Donald. Just ask Bill Maher.
In January, Maher visited fellow comedian Jay Leno on The Tonight Show. There, Maher discussed his “beef” with Donald Trump, who Maher claimed had rejected several invitations to appear on Maher’s late-night HBO show, Real Time with Bill Maher — evidently to Maher’s relief, given that Trump was such “a terrible racist.” Of course, the ever-gracious Mr. Maher was quick to wish “the best for the syphilitic monkey who does [Trump’s] Twitter feed.”
Seizing upon the “syphilitic monkey” moniker, the conversation led (as it naturally would) into a joke about Donald Trump being “the spawn of his mother having sex with an orangutan” because, according to Maher, “the color of [Trump’s] hair…and the color of an orange orangutan is the only two things in nature of the same color.” (Obviously.) Ultimately, Maher concluded the joke by announcing — in an apparent parody of Trump’s (not actually) “very big,” (not remotely) game-changing pre-election announcement (more on that in a moment) — “I hope it’s not true…but unless [Trump] comes up with proof [that he is not the lovechild of an orangutan]…I’m willing to offer 5 million dollars to Donald Trump…that he can donate to a charity of his choice.” As an example, Maher suggested the “Hair Club for Men.”
The very next day, demonstrating the sense of humor for which he has become legendary, Trump had his attorney write to Maher, formally accepting Maher’s “offer” and attaching a copy of Mr. Trump’s birth certificate, demonstrating that Trump is indeed “the son of Fred Trump, not an orangutan.” (Can you imagine being the poor lawyer who got that “urgent” assignment at midnight?) Trump demanded a $5 million payout, and when Maher ignored the demand letter, Trump actually filed a lawsuit in Los Angeles Superior Court demanding $5 million in damages. Let me be clear: this is not actually a joke. This is a lawsuit that has seriously been filed.
This prompted Maher to assert that Trump needs to understand two basic concepts: “what a joke is and what a contract is.” And although we all know how this case is going to end, we would be remiss in not taking this opportunity to dedicate an entire blog post to The Donald’s bloviating buffoonery. Could Trump really take this lawsuit all the way to the bank?
Reward Offered for Donald Trump’s Sense of Humor (Dead or Alive…Probably Dead)
Under certain circumstances (usually where someone has actually expended time, money, or other resources in response), an offer to pay a reward — even if it is something said on YouTube or on television — can be enforceable. For example, a jury in New York recently decided that musician Ryan Leslie must pay $1 million to a German man who responded to Leslie’s YouTube reward offer and found and returned Leslie’s stolen laptop, most likely making that the most expensive YouTube ever posted that wasn’t a bling-addled rap video. Similarly, public rewards for information leading to the capture and conviction of wanted criminals can be enforced in the courtroom.
But of course, to be enforceable, these reward offers must be actual offers, not obvious jokes. As one commentator has pointed out, that is how Pepsi once avoided being forced to hand over an AV-8 Harrier II jump jet to someone who read their “Pepsi Points” contest rules a little too carefully, and it’s why one enterprisnig young law student has spent seven years trying to collect on a Dateline NBC-aired million-dollar challenge.
Joke or Contract?
To evaluate whether Maher’s statement was a joke or a contract offer, we first have to look at some background. For years, Trump and legions of other “birther” conspiracy theorists who likely share an orangutan lineage with Trump have demanded that President Obama provide proof that he was born in the United States. Despite Mr. Obama actually providing both “short form” and “long form” copies of his birth certificate, Trump and others refuse to see the light shining brightly through the canopy. In October, Trump posted a “major announcement” on YouTube offering President Obama $5 million to the charity of his choice if Obama would agree to release his college records and passport application.
The day after Trump’s offer went public, Stephen Colbert made a major announcement of his own, offering Donald Trump $1,000,000 to charity if Trump would let Colbert perform a sex act on Trump (making a vulgar pun relating to the “tea” party). This was clearly a joke (though I guess we’ll never know for sure, as Trump evidently declined to take Colbert up on his offer).
Then in January, Maher then made his statement on Leno’s late night talk-show. And, as we have already discussed, Trump went bananas.
Trump’s Preposterous Lawsuit and Maher’s Hilarious Response
In his complaint, Trump attaches a transcript of Leno’s interview with Maher. After recounting Maher’s comments about Trump being “the spawn of his mother having sex with an orangutan,” and the “offer” to donate money to charity, Trump alleges: “Demonstrating that he understood Maher’s offer to be genuine, Mr. Leno responded to Maher’s statement by commenting on the substantial sum at issue, stating ‘wow, wow, 5 million dollars!’” Trump goes on to allege that his attorney formally accepted the offer the next day and that “[a] contract was formed between Maher and Mr. Trump as of the moment the Acceptance Letter was sent.”
Maher’s recent response on his late-night show was priceless.
As noted above, Maher initially noted that Trump needs to understand two basic concepts: “what a joke is and what a contract is.” After explaining the meaning of “parody,” Maher showed a copy of the “Acceptance Letter,” and quoted the following passage: “Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan.” Maher followed this up by asking, “Do these morons even know it’s impossible for people and apes to produce offspring?”
After taking a brief serious moment to state his disgust with Trump and that the law is not “a toy for rich idiots to play with,” Maher quickly returned to his excoriating parody by saying that the birth certificate Trump provided actually “raises more questions than it answers.” Specifically, Maher joked that he and a growing number of other patriot Americans who call themselves “apers” had serious questions about the “short form” birth certificate Trump attached as an exhibit. Maher demanded to know the whereabouts of the “long form” certificate and found it ironic that Trump produced the same type of evidence that Trump himself found insufficient when coming from President Obama.
In the end, Maher concluded his rebuttal by dismissing Trump as “a man who, for a little extra publicity, will happily keep alive a debate over whether his family reunions are held at the zoo.” The masterful takedown not only delivered a much-needed rebuttal to Trump’s preposterous lawsuit — it also poignantly highlighted the obviousness of Maher’s joke in the first place. Maher’s appearance, a few days later, on Conan O’Brien’s late-night show made for some extra tasty icing on cake.
Obviously, This Is Why We Go to Law School
The real question here is not whether Maher will win the lawsuit. (He obviously will.) Rather, there are two questions that I think are worth asking.
First, how does the poor associate in Trump’s lawyer’s office explain to his family that this, this is what he spent three years and tens of thousands of dollars going to law school to achieve?
And second, how much money will Trump end up having to pay Maher for bringing an abusive lawsuit? It will be interesting to see whether Maher’s attorneys pursue an anti-SLAPP motion. (California’s anti-SLAPP would allow Maher the chance to force Trump to preemptively demonstrate the merits of his lawsuit — and, when he inevitably fails to do so, to recover the attorneys’ fees spent on the effort.) Because if anyone in the history of ridiculous lawsuits deserves to pay penalties for acting like a monkey — it’s Donald Trump.