Not Funny: The Conan O'Brien Joke-Stealing Lawsuit Is Still Going On

from the funny-story dept

We’ve obviously talked about the great deal of harm that a protectionist view of copyright can cause, both in terms of its ability to deny the public useful innovations and its use by the powerful to bully the weak. But one of the harms in protectionism and the ever-expanding culture of ownership that pervades modern life that is less talked about, possibly because it’s somewhat obvious, is its sheer ability to bog down individuals in an absurdly lengthy legal process that seems to move at a pace purposefully calibrated to be as frustrating as possible.

A great example of this is the copyright case Conan O’Brien is embroiled in still, all over accusations that he and his writing staff “stole” a handful of jokes from a freelance comedian, who has claimed copyright over them. We first wrote about this case in the first half of 2017, where a judge had greenlit all of this for a jury trial, but the lawsuit itself was actually filed back in 2015. And, incredibly, it’s still going on. The clock is still running at three years, with the most recent news being that the court has refused to allow O’Brien’s team two affirmative defenses based on the actions of the plaintiff.

The court on Thursday dismissed two of O’Brien’s affirmative defenses, one arguing that Kaseberg had committed fraud on the copyright office and the other that he isn’t entitled to relief because he withheld relevant documents during discovery and has “unclean hands.”

“Even if omission of the Court’s ultimate conclusion that the jokes were entitled only to thin copyright protection were misleading, however, the Court would have to conclude that there was no intent to defraud here,” writes Sammartino. “It is undisputed that Plaintiff’s counsel attached a copy of the Court’s full Order to the letter to the Office. Had Plaintiff been attempting to pull a fast one on the Office by misrepresenting the Court’s Order, he would not have provided the Office with a means of verifying that deception.”

I would quibble with the court’s logic in that, actually. After all, the Copyright Office is not known for its stringent background checking work generally speaking. More generally, how often do we encounter folks making assertions with citations that don’t fully support those assertions, as a way to try to bolster their claim under the assumption that nobody is actually going to dissect the citation? That happens all the time.

That said, the ruling isn’t blatantly silly. Unlike, say, the fact that O’Brien is still dealing with a lawsuit nearly four years running due to a claim of copyright over a couple of jokes. Anyone that would want to claim that that isn’t absurd needs medical care, in my view.

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Comments on “Not Funny: The Conan O'Brien Joke-Stealing Lawsuit Is Still Going On”

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Anonymous Anonymous Coward (profile) says:

Re: Re: Copyright ALL the stuff

That copyright was accepted, no doubt. Then, there was that ruling that said that databases were not copyrightable. But that was only the US Supreme Court, then along came the EU.

BTW, how much are you charging to use your whitelist? Are the terms better than using the blacklist? What happens if I buy both and then something comes along that is on neither? Whoa is me. What a conundrum. How is one to figure out what to do?

Oh, what happens when something is on both lists?

I know…just stop creating as there is no way to create and obtain the rights to your own creations.

Well done EU.

Anonymous Coward says:

Re: Re: Re: Copyright ALL the stuff

“Oh, what happens when something is on both lists?”

Trust me everything they think they can fool someone into paying for that is on the whitelist will be on the blacklist as well. And even after it is legally deemed to be on the whitelist (happy birthday) they will still attempt to get $$ based on it being copyrighted.

Anonymous Anonymous Coward (profile) says:

Are there really any 'new' jokes?

Let’s see, a vaudvillian tells a joke, then twenty years later some Catskill comedian tells the same joke. Then twenty years later some up-and-coming comedian telss the same joke on say The Johnny Carson (aka The Tonight Show) show, and then twenty years later some other, new, up-and-coming comedian tells the same joke on Jay Leno show (aka also the Tonight Show). Just who got hurt?

Was there any blood? Were there any scratches? Broken bones? How about bruises? OK, I know, we are talking about economic harm. Well that goes to the guy who originally wrote the joke, twenty years before the first vaudvilian told it. He’s dead. Has been for a lot longer than 75 years. But somewhere along the path of the joke (which may have had several iterations or updating to the times) makes a claim of copyright, and the cycle begins again.

And the joke is, there are no new jokes. There are only updates to old jokes. Except, we now have the joke that goes ‘who has the copyright on this joke that has been around forever’?. With the punchline of new iterations of the same joke gets new copyright protections, but then what happened to the copyright of the previous iteration?

Anonymous Anonymous Coward (profile) says:

Re: Re: Are there really any 'new' jokes?

The economic upheaval of having to close all the comedy clubs in the world was something that had to be determined to be unsustainable. Then there is the consideration for sitcoms on TV and/or cable, which could no longer exist. Oh, and all the late night shows will no longer have any content to show as there is nothing serious there (maybe an exception for John Oliver) .

The total loss of humor in the world was both reviled and extorted. The problem is that they could not figure out what to replace it with. It did not take long to determine that Trump wasn’t an option.

Anonymous Anonymous Coward (profile) says:

Re: Re: Are there really any 'new' jokes?

Yeah they got around that by calling it something called treatment, which migh abrogate some of my argument above.

It also explains whay Disney got away with copyrighting things that were already in the public domain, they treated those things differently. It does not explain why different treatments of the original tune that Stairway to Heaven and some other song arent’ aslo differently copyrightable. It also doesn’t explain why, oh what is the term, the mixing of various exerpts from different pieces of music, also considered a new treatment.

Is this a new or just a different definition of double standard? Can double standards be codified? Or have they been already?


like all corporate entities and their staff, when the cliques and bullies cry foul, no one cares.
I don’t know the issues, and WHY should I? when you elevate yourself to the point of being untouchable, with your head in the clouds, you forget that your ass is up there too.
don’t excuse me while I crack a smile.
when someone can’t defend their position, they always resort to cheap shots. it’s all they have in their arsenal.
it wouldn’t bother me if the entire so called entertainment industry dropped off continent in the middle of the night. people, world wide, would instantly become more intelligent. it’s a bell curve thing.

Anomalous Cowherd says:

Joke recycling

When I was a wee lad in the Boy Scouts, their magazine, Boy’s Life, had a reader-contributed joke page. I think they paid $1 for every joke they published. Someone submitted the definition “Buccaneer: a hellova price to pay for corn.”

Fast forward ten years and I was in college reading Playboy. Imagine my surprise at reading that very same joke in their humor page, except that they had paid someone $50. Now that’s truly one hell of a price to pay for recycled corny jokes.

Face it, folks – 99.9% of humor has been laughed at before. Get over it.

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