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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  • icon
    Gary (profile), 16 Nov 2018 @ 1:47pm

    Copyright ALL the stuff

    Since anything can be (and is) copyrighted, we need a whitelist of things that *aren't* copyrighted. It's the only sensible way to protect corporate interests.

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

    • icon
      DeComposer (profile), 16 Nov 2018 @ 5:27pm

      Re: Copyright ALL the stuff

      I did that.

      And then I registered the copyright for the list.

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

      • icon
        Anonymous Anonymous Coward (profile), 16 Nov 2018 @ 5:48pm

        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.

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

        • icon
          nasch (profile), 18 Nov 2018 @ 7:23am

          Re: Re: Re: Copyright ALL the stuff

          Whoa is me.

          Woe (sadness) is me.

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

        • identicon
          Anonymous Coward, 19 Nov 2018 @ 9:26am

          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.

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

  • icon
    Anonymous Anonymous Coward (profile), 16 Nov 2018 @ 3:47pm

    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?

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

    • icon
      Gary (profile), 16 Nov 2018 @ 5:43pm

      Re: Are there really any 'new' jokes?

      All jokes must be retired (or licensed) for the life of the writer plus 70 years.

      How hard can that be?

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

      • icon
        Anonymous Anonymous Coward (profile), 16 Nov 2018 @ 5:57pm

        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.

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

        • icon
          Gary (profile), 16 Nov 2018 @ 8:15pm

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

          Per the new section 13, all live comedy clubs must be withheld 24 hours until an extensive "Notice and Takedown" check can be compared against all prior copyrighted comedy.
          Please refrain from any live events until further notice!

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

    • identicon
      Anonymous Coward, 16 Nov 2018 @ 5:56pm

      Re: Are there really any 'new' jokes?

      ... good point

      and same question applies to songs, movies, novels, etc

      there are only 3 basic Hollywood movie plots: Boy meets Girl, Good Guys vs Bad Guys, Man vs Nature

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

      • icon
        Anonymous Anonymous Coward (profile), 16 Nov 2018 @ 6:07pm

        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?

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

      • identicon
        ParkLiving, 16 Nov 2018 @ 7:43pm

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

        Nononono! Are you from the past?!

        Gender meets gender
        People you agree with tolerate people you disagree with
        Human becomes one with nature

        Phew! Thank Unspecified Concept That Makes You Feel Safe I came by!

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

        • identicon
          Paul Brinker, 16 Nov 2018 @ 8:38pm

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

          I submit the Epic of Gilgamesh, along with a number of original fairy tales that there is indeed one other holywood plot.

          How to steal from old shit and make it new again.

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

        • icon
          Bamboo Harvester (profile), 17 Nov 2018 @ 7:03am

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

          Shouldn't that be:

          Gender Identity meets Gender Identity
          Reasonable people meet Haters
          Humans cause global warming until the planet fights back

          /s

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

      • identicon
        Ralph, 17 Nov 2018 @ 7:23am

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

        Good Guys vs Bad Guys is a subset of Man vs Nature.

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

  • identicon
    Glenn, 16 Nov 2018 @ 5:56pm

    Family Guy knows where all the jokes come from.

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

  • identicon
    KEVIN FEARS, 17 Nov 2018 @ 12:15pm

    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.

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

  • identicon
    Anomalous Cowherd, 17 Nov 2018 @ 1:34pm

    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.

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

  • identicon
    Anonymous Coward, 17 Nov 2018 @ 5:50pm

    I'm officially copyrighting this comment, just in case I can make money from any similar comment in the future.

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

    • icon
      Gary (profile), 17 Nov 2018 @ 8:33pm

      Re:

      I'm officially copyrighting this comment, just in case I can make money from any similar comment in the future.

      Actually, you have a copyright to that comment, and you have granted TD a perpetual non-exclusive copyright as well.

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


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