Chappelle's Show on Netflix - the unforgiving tension between an artist and the creations he does not own

Darnell Rawlings and Dave Chappelle

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is licensed under CC BY-NC 2.0

"Boycott me!" is not a typical refrain for an artist, or indeed anyone. Yet, that is the request that Comedian Dave Chappelle made to his fans. In a stand-up performance entitled Unforgiven, which the comedian uploaded to Instagram on November 24, Chappelle asked his fans not to stream episodes of his sketch comedy show, Chappelle's Show. 

Additionally, he told his fans that Netflix had pulled the show off of their streaming library after he told them that the fact that they were streaming it made Chappelle "feel bad." This is not the typical vocabulary used by a copyright holder concerning the unwanted use of their works - which reflects Chappelle's lack of ownership in the work that made him famous.

Chappelle may not have any available legal remedies to control the distribution and display of his earlier work, but that earlier work brought him fame and fans. Now, he is leveraging that fame and those fans to regain some control of the work that bears his name. Let's explore the IP implications of Dave Chappelle's Unforgiven.

Chappelle's Show

Dave Chappelle is currently riding a second wave of success. His first wave was driven primarily by a sketch comedy show on Comedy Central which Chappelle wrote and starred in, Chappelle's Show. In a Rolling Stone poll of industry participants, Chappelle's Show ranked 64th in the 100 Greatest TV Shows of All Time. Additionally, Chappelle was a successful stand-up comedian, releasing an HBO special in 2000 and a Showtime special in 2004. 

Chappelle's Exit

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Despite the critical acclaim, the show only ran for two complete seasons, with a partial third season crafted from a compilation of unaired material. Before the third season, Chappelle left for South Africa; Comedy Central had the rights to use the material that had been filmed. The third season, entitled "the Lost Episodes" were co-hosted by Charlie Murphy and Darnell Rawlings, regular cast members on the show.

Chappelle's Return

In 2013, Dave Chappelle returned to stand-up comedy as a headlining performer. Three years later, he secured a $60 million deal with Netflix for three stand-up comedy specials - approximately $20 million per hour. While it is clear that Chappelle quickly regained his popularity, he largely avoided the sketch comedy genre, save for guest appearances on Saturday Night Live. He has continued to film stand-up comedy for Netflix through 2020.

Chappelle's Unforgiven

Despite being part of a stand-up comedy performance, Unforgiven offers an artists perspective on relevant legal topics. In the show, Chappelle identifies two forms of intellectual property that he no longer controls as a result of his contract with Comedy Central. The first is the copyright in his sketch comedy work, Chappelle's Show. The second is the trademark rights in his name and likeness, as associated with a sketch comedy show. Despite these legal obstacles, Chappelle boldly states that "they're going to pay me for this show" and proceeds to vie for control of his intellectual property.

Chappelle's Show Copyright

It is certainly common practice for artists in the United States to transfer copyright ownership in their works - particularly the rights of publication, distribution, reproduction, and display - to studios, record companies, and publishers. The US Copyright Act allows artists to terminate these transfers as a matter of right after a period of time, returning copyright ownership to the author or their successors in interest. However, with Chappelle's Show well within the 35 year minimum period, Comedy Central will retain ownership of the copyright in the show for years to come. 

 

Dave Chappelle does not own the right of distribution for Chappelle's Show. Recently, HBOMax, CBS All Access, and Netflix began streaming the show, in addition to Comedy Central. Rather than seeking to assert a legal claim - for which he would have no ground-, Chappelle exercised his sway as a celebrity and successful performer to restrict the distribution of his work. In Unforgiven, Chappelle tells his fans that when he (the comedian who had received a $60 million deal) told Netflix that streaming the show made him feel bad, they pulled the show from their network.

Then, in the context of rebuking the notion that he has no legal sway over the distribution of Chappelle's Show, Chappelle tells his audience:

"I'm begging you. If you ever liked me, if you ever think there was anything worthwhile about me, I'm begging you - please don't watch that show. I'm not asking you to boycott any network. Boycott me! Boycott Chappelle's Show. Do not watch it unless they pay me!"

Chappelle's Name and Likeness

While his lack of copyright only concerns the works that Chappelle produced for Comedy Central, his lack of trademark ownership restricts prospective creation. Chappelle notes in Unforgiven that he has considered starting a new sketch comedy show. He points out, however, that he would not be able to call this new show "Chappelle's Show" as Comedy Central retains the right to his name and likeness. 

Unlike copyright, there is no mechanism for Chappelle to reclaim his trademark through statutory termination. However, non-use of a mark can constitute abandonment, leading to cancellation of the mark. Further, the value of the mark is greatly reduced if the boycott that Chappelle calls for is sufficiently widespread.

Comment

This Kat is intrigued by an artist such as Chappelle using his fanbase and star power to achieve a legal result. Here, having already supplied his works to Comedy Central, Chappelle seeks to leverage the demand side of the market for his work to reduce the value of the copyright in Chappelle's Show. Similarly, this sort of boycott would reduce the value of the trademark in his name and likeness, depending on how widespread it becomes. This Kat is curious to see if other artists will attempt similar maneuvers through their fanbases, and the level of popularity necessary for such a boycott to be effective.