This Legal Dogfight Is No Joke

They are two puppets, yes, but two puppets with lawyers and TV credits and egos. They are now enmeshed in a legal dispute closely watched by the nation’s comics, who sense more than just a laugh building.

It began, roughly, when Triumph, the Insult Comic Dog, feeling aggrieved and violated, angry enough to swallow his trademark cigar, could contain his rage no longer. Wasn’t he America’s preeminent caustic dog puppet? A beloved artist with a cult following who’s been appearing since 1997 on NBC’s “Late Night With Conan O’Brien”?

As for this new dog, this Johnny-come-lately, sarcastic little sock puppet with his commercials for the online pet supply business Pets.com--wasn’t he just a bastardized knockoff?

“I’m the king, man. He’s a rip-off artist,” Triumph told the host during a March 29 appearance on Comedy Central’s mock news program, “The Daily Show With Jon Stewart,” denouncing the Pets.com Sock Puppet. From there, Triumph launched into a tirade worthy of a three-martini lunch in a Friars Club back room, accusing Kermit the Frog of “having no scruples” and Howdy Doody of stealing his shtick.

As comedy theater, the bit worked beautifully. But as a practical matter, that Comedy Central appearance is now evidence in an unusual legal complaint brought by San Francisco-based Pets.com against Robert Smigel, a comedy writer-performer for NBC’s “Saturday Night Live” and “Late Night,” programs on which he voices and manipulates the vitriolic show biz puppet Triumph.

In addition to causing a small media brush fire last week, the case highlights one of the more vexing truisms of humor: Sharing a joke is easy, but owning a joke, and claiming it as intellectual property, is another matter entirely.

Indeed, Smigel’s predicament is emblematic of the frustrations that comics and comedy writers experience trying to establish ownership of material and the headaches inherent in pressing the matter publicly.

In this case, Smigel is being sued for defamation for publicly suggesting that the Pets.com Sock Puppet, the centerpiece of the company’s $20-million advertising campaign, is stealing Triumph’s identity. The Pets.com puppet has quickly enjoyed far more exposure than Triumph ever had--with a Super Bowl commercial, appearances on “Good Morning America” and CNN, and a balloon in the Macy’s Thanksgiving Day Parade.

Like Triumph, the Pets.com Sock Puppet interacts with other animals. Like Triumph, the sock puppet uses a microphone. And like Triumph, the sock puppet has a sarcastic attitude.

Smigel’s troubles derive from the fact that, unlike musicians or screenwriters, comedians tend not to use copyright law to protect their material. Instead they share it with the public, via club dates, TV appearances, Web sites--and in sharing leave themselves vulnerable to borrowing, tweaking, stealing.

One comic taking from another is a practice as old as the caveman--or at least as old as Milton Berle, whom gossip columnist Walter Winchell famously dubbed “the thief of bad gags.” Thanks to TV and especially the Internet, where jokes get passed around via e-mail virtually at the speed of sound, humor is among the most furiously circulated information, and determining ownership of a joke or character is an elusive, Orwellian task.

“In the old days a comic would do a joke onstage at the Copa [in New York], and four hours later, a comic would be doing the same joke onstage at Ciro’s [in Los Angeles],” says George Schlatter, the longtime television producer of such shows as “Laugh-In.” “Today, with the Internet, you can [steal] in real time. It’s almost like closed captioning.”

Still, is Smigel’s sense that he’d been ripped off the delusion of a reclusive, self-absorbed artist or the legitimate contention of a comedy writer trying to protect the life of his unique creation? Central to Smigel’s argument is the notion that Pets.com infringed upon his trademark--in essence, that Triumph’s identity in the marketplace was being blurred.

Even those sympathetic to Smigel’s cause have noted that he’s hardly the first to have created a puppet with attitude--or even one with a cigar. Since the early 1990s, Canadian TV viewers have been watching the escapades of Ed the Sock!--a green-haired gray sock puppet with a stogie in his mouth. And “The Ben Stiller Show,” which ran briefly on Fox in 1992-93, featured a recurring, foul-mouthed sock puppet sitcom star named Skank.

But by several accounts, Smigel, who created Triumph for “Late Night” in 1997, keeps close creative watch over the character, presenting him on O’Brien’s show selectively, not wanting to overexpose the puppet.

For Pets.com, however, Triumph and Smigel have been speaking too freely of late. According to their suit, filed April 12 in U.S. District Court in San Francisco, Smigel, the creator and voice of Triumph, has, in TV and print, “both suggested and directly stated through his representatives that the Pets.com Sock Puppet was stolen from him and is a ‘rip-off’ of Triumph.” The suit says these actions constitute defamation and trade libel against the company.

A Temporary Muzzle on Triumph

Pets.com is certainly not the only pet supply company vying for consumers on the Internet. Thus some industry analysts think there is far more potential in the firm’s sock puppet than in its pet supplies.

“Maybe they see a profit potential in the sock puppet, because they sure aren’t going to make much money overnight shipping dog food to America,” says Bob Garfield, media critic for the industry trade publication Advertising Age.

Kevin James, attorney for Pets.com, did not return phone calls seeking comment. Last week, the company released a statement saying: “Our Sock Puppet clearly has no relation to Triumph. We are taking normal steps to obtain a ruling from the court that protects our intellectual property.”

The lawsuit temporarily put a muzzle on Triumph and his “Late Night” appearances, pending word from lawyers at NBC, which several sources say is Triumph’s rightful owner. But Tuesday the show, which airs at 12:35 a.m., finally had fun with the situation, after the network’s lawyers took a close look at the script. And Triumph is scheduled to hold a mock news conference tonight.

“Even though we can hide behind the parody laws, it’s still got to be defended, and that costs money,” said a show source.

Last week, “Late Night” host O’Brien acknowledged that being unable to parody something so ripe for satire carries its own frustrations.

“We can’t do anything about this yet because we are being restrained,” he told his viewers then. “When we get the go-ahead, we will mock and ridicule the whole thing, so stay tuned.”

On Tuesday, O’Brien played excerpts of Triumph’s Comedy Central appearance and read directly from the lawsuit itself. In it, Pets.com’s lawyers accuse Smigel of using the media to create a false comparison between “the characteristics and personality of Triumph, a cigar-smoking rubber dog that regularly uses vulgarity, makes sexist comments to and about women and occasionally physically attacks other animals in a sexual manner, to the clever, family-oriented, child-friendly Pets.com Sock Puppet trademark.”

Comedian Carves Niche for Himself

Smigel has carved a niche for himself on “Saturday Night Live” since 1985, in part by imbuing kids-show icons with adult themes, including the animated adventures of “The Ambiguously Gay Duo,” cartoon superheroes whose strongly implied sexuality offends their enemies.

Smigel also has had success as a heard-but-not-seen force on “Late Night,” where he performs as Triumph and more often in the popular “Clutch Cargo”-type sketches, during which O’Brien interviews portraits of famous figures (President Clinton, Don King), with Smigel providing the mouth and voice.

On the advice of his attorney, Smigel declined comment for this story. But in the comedy world, his case has an all-too-familiar ring.

“Most people’s perception is that comedians don’t write their material,” says Paul F. Tompkins, a stand-up comic and actor with a sitcom pilot at NBC. “There always has been and always will be a lack of respect for comedy as an art form.”

George Carlin is one of the few comics to actually benefit from joke thievery. In 1998, former Boston Globe city columnist Mike Barnicle included in a column some jokes that echoed one-liners in Carlin’s book “Brain Droppings.” Barnicle was later accused of plagiarism and lost his job. Carlin’s book was nudged up the New York Times bestseller list.

Carlin now says he was less bothered by the act of theft than Barnicle’s reworking of his material, changing sentence construction and word choice, weakening the jokes. “I slave over sentences; I love the writing part,” Carlin says. But he concedes that humorists don’t carry the same weight of authorship as novelists or songwriters.

“People tell jokes to each other. They are a social commodity that people use to loosen up friends or be lively at a party, so [humor] is kind of considered common currency,” Carlin says. “Almost everyone has a sense of humor to some degree and makes jokes, and some people are known in their circles as really funny guys. . . . Only a [small] percentage of us say, ‘I’m going to concentrate on this as my career.’ ”

Mark S. Lee, an attorney who specializes in intellectual property law at Manatt, Phelps & Phillips LLP, says that as a practical matter comedians no longer have to copyright their material, so long as they reduce it to “a tangible medium of expression”--legalese for writing jokes down on paper, or videotaping or recording one’s act. Still, as Lee notes, few comics are willing to travel the costly route of legal action as a recourse.

Carlin and others say the best way to prevent material from being stolen is to develop a distinctive voice, making copycats obvious culprits.

Steven Wright, for instance, carved a comedy niche with his droll one-liners, delivered in a fastidiously deadpan tone. It’s a voice unique enough that several years ago Wright successfully put a stop to a regional ad campaign by Glade air freshener that had a striking likeness to his comedy, says Wright’s manager, Tim Sarkes.

“When a comic’s material is stolen and used in some kind of media, like an advertisement, or another comic does somebody else’s joke on TV, you kind of have the hard evidence,” says Sarkes. “It happens all the time, but sometimes it just gets out of hand. A comic will say, ‘That’s my McDonald’s bit.’ Well, 2000 comics probably have a McDonald’s bit.”

Since debuting on “Late Night,” Triumph has become a cult favorite on a show with a cult audience--currently averaging about 2.5 million viewers nightly, according to Nielsen Media Research. Wearing a bow tie and chewing a cigar, Triumph often lays waste to his celebrity brethren.

Sensing his popularity as an inside joke among people in the TV industry, NBC has found other roles for Triumph, including an appearance with O’Brien last year when the network unveiled its fall lineup to television reporters and advertisers in New York.

“Is that poop still on the air?” Triumph scoffed at the news that NBC was bringing back the sitcom “Veronica’s Closet.” “Whose leg did Kirstie Alley have to hump to get that?”

All was swell in Triumph’s world until last year, when Pets.com hired advertising agency TBWA/Chiat/Day to create a series of commercials. Chiat/Day, which dreamed up the talking Chihuahua to promote Taco Bell, conjured up another canine for Pets.com--this one a crude-looking, sarcastic sock puppet that interacts with other animals, doing field reports with a microphone.

The exposure for the Pets.com Sock Puppet and its similarities to Smigel’s creation alarmed Triumph’s loyal fans and writer friends of Smigel’s, some of whom thought the comic had aligned himself with Pets.com. Others smelled a rip-off, and eventually Smigel did too. He had his lawyer fire off a letter to Pets.com, pointing out the similarities between the company’s puppet and Triumph.

“I wasn’t that up in arms, because my parents think that everything on TV is stolen from me,” Smigel joked in a New York Daily News article around that time. “This time, though, it was friends and other comedy writers who were asking me about it, people a little more objective than my parents.”

Smigel’s backers saw further “artist versus the system” undertones in the fact that the Sock Puppet began appearing on Walt Disney Co. programs (ABC’s “Good Morning America,” the syndicated “Live With Regis & Kathie Lee”) shortly after the studio announced a broad marketing agreement between Pets.com and Go.com, Disney’s Internet unit.

Pets.com spokeswoman Melissa Menta said the sock puppet’s appearances on ABC shows were part of “a massive pitch to every network” to gain increased exposure for the spokesdog. The company is in the midst of a licensing push too; visitors to the Pets.com Web site can now purchase everything from Sock Puppet fleece pullover sweaters ($44.99) to ceramic dog bowls ($12.59).

Chiat/Day declined to comment. Some in the ad community have suggested that the Pets.com Sock Puppet takes its inspiration not from Triumph but from a fur doll named Flat Eric, who appeared on the air in Europe last year as part of an ad campaign for Levi’s.

Nor is this the first time that Chiat/Day’s ingenuity has created a dognapping controversy. Last year, a federal district judge heard a lawsuit brought by the creators of the Psycho Chihuahua, which the plaintiffs had sent to Taco Bell a year before Chiat/Day unveiled its own Taco Bell spokesdog.

In throwing out the suit, the judge ruled that the “psycho” dog wasn’t novel enough--that Chihuahuas with similar characteristics had appeared in other commercials and even the film “Lady and the Tramp.”

In effect, the judge reinforced a commonly held view--that no idea is an island.

In an interview, Peter Angelos, group creative director at the San Francisco ad agency Foote, Cone & Belding, said he hadn’t heard about the Pets.com vs. Smigel case. But he instantly recognized its themes.

“When things like that take off, they get a momentum of their own,” he said. “People usually say, ‘Hey, I thought that up.’ And the answer is usually, ‘No, you didn’t; we did.’ ”