Conan O'Brien Joke-Stealing Case Gets Green-Lit For Jury Trial

Copyright

from the no-laughing-matter dept

Consternation over so-called “joke stealing” goes back roughly as long as comedy itself has been a thing, but these past few years have seen something of a rise in awareness whenever a comedian is accused of copying a joke. Honestly, much of this hand-wringing is overblown, likely born of an ownership culture that values protectionism over expanded culture, and devoid of the understanding that a joke is much more than the words used to tell it. After all, timing and delivery factor into the success in telling any joke, and it almost seems too obvious to have to point out that multiple comedians come up with similar jokes all the time. For that reason, the bar for copyright infringement on jokes has tended to be very high in the few cases that actually get tried. On top of that, the common method for policing such copying involved the massive reputational hit the accused takes — rather than legal action. And that’s only accelerated thanks to the internet’s public shaming engine. Because of that, actual lawsuits over this sort of thing are few and far between.

Which brings us to Conan O’Brien, who is still in the midst of a years-old copyright infringement suit over the claim that he and the writers of his show used several jokes from a freelance joke writer without authorization.

Experts in copyright law say the 2-year-old copyright infringement lawsuit filed against O’Brien, his writers for his late-night show, Conan, and Time Warner over a handful of topical jokes may never get before a jury, despite a ruling by a judge that the case can proceed.

The stakes are high, not just in time and litigation costs but in “reputational” costs: No comedian wants to be known as a joke thief. “Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder,” O’Brien said in a deposition in the case. “I think it’s absolutely terrible.”

The relatively few lawsuits of this sort almost never get to trial for this very reason. It ends up being in the accused’s best interest to settle, and settle quickly, regardless of the merits. The more public attention given to accusations, the bigger the reputation hit. Of course, those bringing the suits know this as well. The plaintiff in this case is Robert Kaseberg, a freelance joke writer who claims several of his jokes made their way onto Conan’s show, unauthorized by him. In the ruling, you can get a flavor of how similar the jokes actually are, but here’s a sample.

On Feb. 3, 2015, Kaseberg posted his version: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”

That night, O’Brien ran with this: “Tom Brady said he wants to give the truck that he was given as Super Bowl MVP … to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that’s nice. I do. Yes. So Brady’s giving his truck to Seahawks coach Pete Carroll.”

Keep in mind that when it comes to jokes and copyright, the bar has generally been set really high. Generally, the word for word lifting of a joke is required for there to be infringement. While the examples in the suit don’t rise quite to that level, the judge decided there was enough to push the trial to a jury.

“Plaintiff’s protectable expression is his implication that a fictionalized Tom Brady would therefore give his truck to the coach of the opposing team, Pete Carroll,” she writes. “And although the Conan joke takes an active stance … the fundamental expression is the same, i.e., that there was no doubt Brady would be giving his MVP award to the opposing team’s coach. As previously stated, while not exactly identical, the jokes are sufficiently objectively virtually identical to create a triable issue of fact regarding whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.”

It’s worth noting that while several jokes are currently at issue in this case, two more were, but are no longer part of it. Why? Well, because the judge ruled that they should be tossed, with the reasoning for one of them demonstrating exactly how it is that two comedians could come up with similar, nearly identical jokes in parallel.

Judge Sammartino threw out the jokes about UAB football and the Delta flight (finding in the latter case that one of O’Brien’s writers had already pitched a similar joke before the one on the blog appeared). That left Kaseberg with the Tom Brady Joke, the Washington Monument Joke, and the Jenner Joke, as the judge labels them.

It’s worth noting that while the judge ruled that the remaining jokes at issue were similar enough for this to go to trial, she also points out that though these jokes are deserving of copyright protection in general, that protection is mitigated by both the nature and length of the works. She notes that we’re talking about two-sentence jokes in every case here, with a topical setup sentence and a punchline. There are only so many ways those jokes can be told, which means that for any infringement to have occurred, the bar for that is typically going to be that the uses must be virtually identical. It’s a function of the jokes’ format, which the judge appears to go to some lengths to point out.

Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright.

So now both sides of the lawsuit will attempt to calculate whether it’s worth it to see this thing through to the completion of a trial. Conan and his team will have to weigh the reputation hit against the likelihood they will prevail given the high bar for infringement in these cases, while Kaseberg will have to weigh the cost of carrying on with the trial against that same high bar.

If it strikes you as silly to watch a legal system contemplate the nature of comedy and jokes in this manner, you aren’t alone. It strikes me that all of this legal wrangling is only effective because of the reputation hit Conan has taken and will continue to take. So, why wasn’t public shaming enough, even if there truly was joke-copying going on?

Filed Under: conan o'brien, copyright, joke stealing, jokes, robert kaseberg, thin copyright