When does a joke make the lawyers laugh all the way to the courthouse?
The answer is when Reader's Digest thinks its famous jokes -- along with a lot of other things -- have been lifted by a young upstart publication with a similar name.
Conservative Digest, a Colorado-based journal that boasts a circulation of 50,000 (though court papers put it at 15,000), had its wrist slapped by a federal judge this week for using a format that was highly recognizable to well-trained readers of Reader's Digest, circulation about 17 million.
U.S. District Court Judge Gerhard A. Gesell ruled that Conservative Digest could not redistribute two covers published last October and November that featured a front-page index and bold "teaser" headlines much like those that have drawn readers to Reader's Digest for years.
In a footnote, Gesell took issue with a contention by Scott Stanley Jr., editor of Conservative Digest, that the covers' resemblance to Readers Digest was pure chance, occurring because he just happened to be using a design computer to develop ideas.
"This testimony, reminiscent of Greek mythology recording the birth of Athena who sprang full-grown from the head of Zeus, is not worthy of belief and is rejected," the judge wrote.
But Gesell also made it clear that nobody was stealing Reader's Digest's jokes -- and that there was something Goliath-like in the way the older magazine had tried to smite its tiny adversary.
Gesell pointed out, for example, that when the two disputed covers brought an outcry from Reader's Digest lawyers, Conservative Digest put a disclaimer on its next cover. "Nonetheless, even after Conservative Digest had abandoned the pilfered [cover], Reader's Digest continued to pursue its already cornered quarry . . . "
"Aided by its computerized indexing system," the judge noted, Reader's Digest had gone on to claim that Conservative Digest had used a number of its jokes, including one about fox hunting that had appeared in a different form in Reader's Digest in 1943. Lawyers for Reader's Digest had argued that, among other things, 22 jokes and anecdotes were lifted by Conservative Digest.
Nonsense, CD publisher William R. Kennedy had argued in a release sent out before the decision: "Reader's Digest claims to have copyrighted every joke told in America since 1922" -- including stories involving Michelangelo, Mark Twain, Satchel Paige, Dante's "Inferno" and the Communist Party.
The lawyer for Conservative Digest, Los Angeles attorney Manuel Klausner, said the most extreme example was a joke by humorist Morey Amsterdam printed in his client's October 1985 issue.
This was the one about the scientist who crossed a silkworm with a chicken and got a hen that lays eggs with pantyhose inside. "We think he's pulling our L'Eggs," CD wrote. The monthly went on to tell about the farmer who tried to cross a hen with a banjo to get a chicken that plucks itself, and finished up with a joke that every farm kid learns before puberty -- about the guy who tried to cross two roosters and all he got was two very cross roosters.
Reader's Digest also had the scientist trying to cross the silkworm with the chicken, but it came out a month later, in the November 1985 issue.
Although the larger digest had asked for various monetary awards -- CD estimates that RD wanted $1.2 million plus attorneys' fees -- the judge ruled that the smaller digest had to pay just $500 in damages plus court costs. The total will probably run $1,000 or less, Klausner estimated.
Still, both sides claimed victory.
"We are quite pleased with it," said Klausner on behalf of Conservative Digest.
Martha Farquhar, vice president and chief counsel for Reader's Digest Association (which publishes Reader's Digest), issued a statement that said: "We are of course pleased that the court recognized the value of our name and trade dress -- what people know as the look of us -- and our right to protect our identity. We will be ever vigilant about our trademark, our trade dress and copyrights."
Both sides said they had no plans to appeal.