Well, anyone could have seen this coming: That Conan O’Brien will eventually blink in his staring contest with Robert Alexander Kaseberg, the man who accused him of stealing jokes from his Twitter and blog platforms and including them in an opening monologue on O’Brien’s TBS show. As a matter of fact, this writer had precisely predicted the current outcome of this case in a post on this blog back in November 2015, a few months after the lawsuit was filed. (See “Accusing Conan O’Brien: Two Joke Writers Walk into a Courtroom.”)
Well, the predicted outcome is now upon us with the announcement on May 9 that the parties have settled the case which had been set for trial on May 28 in federal court in San Francisco. Among the five stolen jokes cited in Kaseberg’s lawsuit was the one about footballer Tom Brady re-gifting his Super Bowl MVP truck to an opposing team coach; plus, one about the shrinking height of the Washington Monument in cold temperatures and one involving a struggle aboard a Delta Airline flight. Kaseberg claimed these jokes were stolen from him between late 2014 and early 2015.
In what seemed like a victory lap, Kaseberg issued a statement saying he was proud that his case helped shed light on an issue facing all comedy writers and that he was happy to be part of contributing legal precedent on the issue of protection afforded to jokes.
For his part, on May 9, O’Brien penned a column in Variety titled “Why I Decided to Settle a Lawsuit Over Alleged Joke Stealing,” in which he explained his decision to walk away from the ring. He essentially said his priority was to “defend the integrity and honesty” of his “remarkably hard working and decent” writers for whom this episode had been “upsetting” in addition to four years and countless legal bills.
Although O’Brien’s action was predictable, it seems quite unfortunate that he was forced to call it quits even though he probably knew that he was more likely than not to eventually win the case on the merits. Before he buckled, he appeared determined to stick up for principles and fight the case on its merits. Sadly, principles appear to have lost its present battle against cold reality.
Anyone who understands the challenge of doing comedy in the Internet age of Twitter and other social media would easily appreciate how much O’Brien was in a pickle here. As O’Brien rightly noted in his Variety column, comedians who make jokes about the same events can sometimes render these jokes in more or less similar ways or even words. This is the so-called “parallel thought” phenomenon. O’Brien cites an instance from 24 years earlier involving himself and David Letterman and Jay Leno all feasting on the same Dan Quayle joke when the former veep announced he was not running for president. O’Brien even recounted 15 separate situations discovered by his staffers where Kaseberg himself had tweeted similar jokes to those already rendered on O’Brien’s show. (Incidentally, if O’Brien would have chosen to fight on in this case, these incidents might all be part of his defenses and they’d be helpful ones.)
In a copyright lawsuit like O’Brien’s case, part of what the plaintiff is required to show is that the alleged joke thief did in fact have access to the material stolen. With an open forum like Twitter to which the entire world potentially has access, it is a cake walk to prove that somebody else had access to an earlier post on Twitter. What an easy advantage for any plaintiff at the starting gate.
And the actual litigation itself would have been a major pain for O’Brien. Both he and his writers probably would have had to testify plus expert testimony and more. Aside from the stress and legal expenses, the sheer drama and uncertainty of testimony and its media coverage are not pretty things. Considering that Kaseberg is a relative unknown who could surely use the limelight afforded by this fight, it becomes obvious that he and of course the high-priced lawyers involved (probably on O’Brien’s side) rather than O’Brien himself would be the true beneficiaries from all this. Needless to say, despite his better-than-even odds of winning the lawsuit, O’Brien was looking at what could only be described as a pyrrhic victory.
So, in the end, O’Brien seemed to have had no choice but to cut his losses. Yet, it bears noting that O’Brien’s dilemma here is something of a sad commentary on the state of the law on joke stealing even in our contemporary age of Twitter.