Accusing Conan O’Brien: Two Joke Writers Walk Into a Courtroom

conan_o'brien_photo2Accusing people of joke stealing has become such an old problem in comedy that it hardly raises eyebrows anymore. Except maybe when somebody is actually accusing an industry heavyweight like Conan O’Brien of being, ahem, a joke thief. But this one case seems more interesting than most because of the rather contemporary feel to it all: the alleged joke heist took place on Twitter, the emerging “it” forum for pushing jokes in our social media age. So, behold an old problem invading a new space even though said problem is still an unresolved menace in all the old places it had come from. But first here’s the story:

This past July, a comedy writer in the San Diego area named Robert Alex Kaseberg filed a copyright violation lawsuit in federal court in California against Conan O’Brien and all those associated with his show, including TBS, Time Warner, Inc., and his writing staff. Kaseberg alleged that four of his jokes that he posted on his personal blog and on Twitter later appeared on O’Brien’s monologue during his TBS late-night show Conan without any attribution to him or compensation to him. . The four jokes at issue ranged from gags about Delta Airlines and Tom Brady to the Washington Monument and Bruce Jenner.

Here’s a sample of some of the jokes allegedly stolen by O’Brien:

Kaseberg: “A Delta flight this week took off from Cleveland to New York with just two passengers and they fought over control of the armrest the entire flight.”

O’Brien: “On Monday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest.”

Kaseberg:  “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”

O’Brien: “Surveyors announced that the Washington Monument is ten inches shorter than what’s been recorded. Of course, the monument is blaming the shrinkage on the cold weather.”

Anyhow, Kaseberg seeks hundreds of thousands of dollars in damages.

In the scheme of things, this case seems to have a bit more significance than many might think at first blush. For starters, it shows that the old worries about joke stealing in comedy won’t be going away anytime soon; indeed the problem has now migrated to the social media arena, as it tracks the movements of the modern comedian and the newfound location of comedy audiences today. Unlike comedy clubs, Twitter is more like an open access forum, where things like a cover charge, drink minimums or other similar restrictions do not exist. The other angle to this story presents something of a David and Goliath scenario: like, when a lesser known comedian is claiming the same joke as a nationally known late-night comedian with the large microphone of national TV, all the advantages seem to run in one direction so that the odds of the lesser-known guy (the little guy) winning that battle is usually pretty steep – and punishing. Assuming, of course, that the person who’s being accused actually stole the joke from the other.

But anyhow, aside from who has a bigger microphone between the two, when we consider just the law, can the little guy in this case actually win? Well, let’s see:

For starters, it is obvious from the present lawsuit that we’re dealing here with copyright law. And although Twitter is a new medium, the idea of violating someone else’s copyright − either in a joke or in some other protected thing like a movie or a book − is still the same. In very simple terms, for a piece of work to receive copyright protection under the law, it is required to be both “original” as well as be fixed in a “tangible medium of expression”.  As the name implies, an “original” idea is something that the person claiming the copyright protection basically came up with on their own; in other words, something not copied from somebody else, so to speak. Well, there are some rules, perhaps many rules around the whole notion of “originality” in copyright law. For instance, certain things or ideas are just not of the kind that can be protected by copyright and so no one can be granted a copyright on them. The oh-so common expression “Happy Birthday!” for instance, probably falls into the class of expressions for which no one can be granted a copyright. Again, just because two people have expressed their ideas in the same exact way doesn’t necessarily mean that a copyright has been breached. In such a situation, it must also be shown that the person who is alleged to have violated the claimant’s copyright actually had access to the said copyrighted material. Otherwise, the alleged similarity between the two works could be chalked up to mere coincidence. Yeah, a showing of coincidence could actually save the day for the person being accused of copyright violation.

To return to the O’Brien situation here, two things look like they are clear: first, the jokes being claimed by Kaseberg seem to be original enough as to qualify for copyright protection, assuming, of course, that he has properly registered those particular jokes at the Copyright Office; second, the jokes involved here were affixed to a tangible medium, namely, Twitter. Plus, it is also true that Kaseberg published the said jokes on Twitter before O’Brien used them in his monologues on his show. (The Delta flight joke, for instance, appeared on Kaseberg’s Twitter page earlier in the day on January 14 before O’Brien made his own joke later that same day in his late-night monologue.)

Yet, that’s not the end of the matter. Among other things, even though Twitter is an open forum where anybody can have access to, Kaseberg will still have to show that O’Brien actually lifted the jokes from his Twitter page. Interestingly, O’Brien’s people have already rejected the suggestion that they got the joke from Kaseberg’s sources. In a reported conversation between Kaseberg and Conan’s head writer Mike Sweeney (published on Kaseberg’s blog), Sweeney did “angrily and loudly” deny that the jokes came from Kaseberg and was “furious” and “incensed” at the suggestion that his writers would have anything to do with the “pathetic blog of a no- name failure” like Kaseberg. Despite the striking similarity between the O’Brien and Kaseberg jokes, the obvious implication of the pretty hard pushback by O’Brien’s side is the assertion that his people [the writers on his show] came up with the jokes by themselves.  Well, unless Kaseberg has some kind of smoking gun of the alleged heist, he doesn’t seem to have a pathway to victory here. Tough stuff! Plus, it doesn’t help him too much that only the Delta flight joke comes up on a search of his blog or Twitter record from that period; the other three do not.

At this point, it is not clear how long this litigation will drag on and for that matter how well Kaseberg’s claims will hold up in the end. If one were to take a bet on the outcome of the case, it would seem like a better bet to say that the case will settle somehow and not go the distance. Though Team O’Brien might well decide, standing on principle, to fight this whole thing to the bitter end, the odds of a settlement of this matter looks somewhat decent. At this point, for O’Brien’s side, the bigger pain isn’t so much the merits of Kaseberg’s lawsuit as it is the optics of it all.   Considering the striking similarity between their respective jokes and the showbiz reality that some folks who don’t much like O’Brien just might be tempted to believe the worst of him in this situation, O’Brien’s side might find the idea of a settlement not to be a bad one after all. A successful show like Conan would likely prefer to avoid the unnecessary distraction and embarrassment of this kind of pesky argument with a guy like Kaseberg.

In the end, it is not that hard to observe that when it comes to protecting jokes in comedy, not much help is available under the copyright law. By comparison to what is done for movies and music, the protection afforded to comedy jokes is rather quite weak. By the way, as matters stand in comedy at this time, if somebody in O’Brien’s position is in the mood to steal jokes and is worried about copyright lawsuits from folks like Kaseberg, all they have to do is to simply use different words to say the same joke and (get this!) they’d be home free. With a copyright scenario like that, it just seems that the notion of protecting jokes in the comedy world at the moment is perhaps nothing less than a big joke in itself.


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