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

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?


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  • icon
    JoeCool (profile), 19 May 2017 @ 12:13pm

    Topical jokes shouldn't be eligible for copyright

    Seriously, I heard that same joke about the MVP truck from a dozen people before it made it online or TV. It was the most obvious joke in the world, and therefore not all that funny. Given how much humans value humor and how many people at least TRY to be funny, I expect that EVERY topical joke is reinvented thousands of times independently. As such, they don't deserve any sort of protection.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 May 2017 @ 12:34pm

      Re: Topical jokes shouldn't be eligible for copyright

      I thought pretty much the same thing. It's an obvious joke and topic for a joke.

      I would have gone with trophy over truck but the basis of the joke is the same.

      reply to this | link to this | view in chronology ]

    • icon
      TechDescartes (profile), 19 May 2017 @ 1:17pm

      Re: Topical jokes shouldn't be eligible for copyright

      Seriously, I heard that same comment about the MVP truck joke from a dozen people before it made it online or TV. It was the most obvious comment in the world, and therefore not all that insightful. Given how much humans value comments and how many people at least TRY to be insightful, I expect that EVERY topical joke comment is reinvented thousands of times independently. As such, they don't deserve any sort of protection.

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 19 May 2017 @ 1:32pm

      Re: Topical jokes shouldn't be eligible for copyright

      "For example, when Gene Roddenberry died, even the very first person to post 'he's dead, Jim' was still an unoriginal, annoying weenie."
      - RICHH

      reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 19 May 2017 @ 12:37pm

    Can we all agree....

    That this case is/will be a joke unto itself?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 May 2017 @ 3:25pm

      Re: Can we all agree....

      So the next time a joke theft lawsuit crops up, you can say that it should be tossed out because it's stealing material from this one?

      reply to this | link to this | view in chronology ]

  • identicon
    Adrian Lopez, 19 May 2017 @ 12:40pm

    Obvious jokes

    Independent creation is a valid defense to copyright infringement. A lot of these jokes basically write themselves. No copying necessary.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 May 2017 @ 12:43pm

    Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

    "Short words are best, and the old short words best of all." -- W Random Churchill.

    "Der kurze Wertes bist dem besten Wertes. Mit dem, Mann kann Atom shplitten, und denn, aus der blau, kerblooie!" -- Alfred E Einstein.

    Anyway: yes, people who create wit take the theft, er, seriously. Even worse in Techdirt's view, they expect to get paid for it! Conehead would have little without people (on staff) paid to write for him. I suppose you think staff writers should work for nothing, TOO? -- I guess you don't get paid for writing here, eh? If don't support this writer, then you don't even support your own rational self-interest.

    SO, if the sourcing is provable (only 50.01% required in a civil case), then O'Bannon owes big, and more for dragging it out.

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 19 May 2017 @ 1:17pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      Copyright is not necessary to earn money.

      reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 19 May 2017 @ 1:23pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      Churchill has only been dead for 52 years, and Einstein has only been dead 62 years. According to your own previous statements, the commentary you applied to those two quotes does not justify your blatant and civilization-ending copyright infringement.

      Yo-ho-fiddle-dee-dee.

      You. Are. A pirate!

      reply to this | link to this | view in chronology ]

    • icon
      scotts13 (profile), 19 May 2017 @ 2:21pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      So... You're saying the big words in the article are too much for you? Which ones?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 May 2017 @ 3:27pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      You know, at least the paid Russian stooges in the next story over at least try to make sense.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 May 2017 @ 3:40pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 19 May 2017 @ 3:41pm

        Re: Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

        Bumped Submit on a blank post by accident; sorry.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 19 May 2017 @ 3:41pm

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      You...do realize that "proactive" is Pointy-Haired Boss verbiage, right?

      "Bring to termination" probably is too.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 May 2017 @ 5:32am

      Re: Would you please pro-actively suspend and/or bring to termination utilitizing Pointy-Haired Boss Verbage? Just "can proceed to jury trial" is CLEAR.

      out_of_the_blue just hates it when due process is enforced.

      reply to this | link to this | view in chronology ]

  • icon
    afn29129 (profile), 19 May 2017 @ 2:49pm

    Go Dog Go!

    Red-Lit, Stop!. Green-Lit. Go Dog Go!

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 20 May 2017 @ 6:03am

    Sounds like a failure of a comedian is just butthurt because another one is successful because he has the talent to get any joke and make it funny with corporal language and good timing. Sadly the moron is being helped by the legal system.

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 20 May 2017 @ 8:03am

    Hmmm

    Seems "mad about you" owes my wife and I a lot of money, damn near every episode was our life the week before it aired. It was Creepy at times, exact dialogue, the wife swears were bugged.

    See how life and art imitate each other....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 May 2017 @ 8:51am

    When there's a situation for which "the joke writes itself" does that mean the joke gets copyright on itself and everybody's stealing?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 May 2017 @ 4:30pm

    COPYING is STEALING!

    If you walk like someone else, you're stealing. If you talk like someone else, you're stealing. If you dress like someone else, you're stealing. If you do anything someone before you has already done, without paying for permission, you're stealing. STEALING STEALING STEALING!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 May 2017 @ 4:09pm

    Copyright infringement for copying a joke? What a fucking joke!

    Warning: This comment has been marked as a possible copyright violation. Contact copyright.department@techdirt.com for more details.

    reply to this | link to this | view in chronology ]


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