Federal Judge Rules Conan Joke Theft Case Can Proceed to Trial
Joke stealing is not funny, and now Conan O’Brien is going to trial over a San Diego man’s allegations that Conan stole his jokes. Team O’Brien tried to have the copyright lawsuit dismissed on a number of bases including allegations that they wrote their jokes first, and that the defendant’s jokes were too common to merit protection. Although team Conan succeeding in having claims over two of the jokes dismissed, last week a federal judge ruled that the case can move forward on the remaining three jokes.
U.S. District Court Judge Janis Sammartino said that as to the three remaining jokes,”there is little doubt that the jokes at issue merit copyright protection.” However, she added, they merit only “thin protection” because the constraints on the monologue format naturally lead to a limited number of possible outcomes. The judge cited the “two line set up and delivery paradigm,” the factual nature of the first line, and the fact that the punchline has to be humorous, have mass appeal, and must apply to the setup line, in making that determination. Because the jokes merit “thin protection”, plaintiff Robert Alexander Kasenberg’s attorneys will need to convince a jury that the jokes are “virtually identical.” Even if the jokes are found to be virtually identical, O’Brien’s team will have the opportunity to argue they were independently created.
Robert Alexander Kaseberg filed suit in 2015, arguing that his jokes were used by Team Coco on Conan’s late night show in 2014 and 2015, and is seeking to recover damages of up to $750,000 for copyright infringement. The suit names Conan, his production company Conaco, Turner Broadcasting, Time Warner, executive producer Jeff Ross, head writer Mike Sweeney and 50 other unnamed defendants as infringers. Kaseberg alleges that the jokes were taken from his Twitter account and blog and used in the monologue part of the show the following day.
The dismissed claims were over a joke about a Delta flight and another one about UAB and the Oakland Raiders. The three jokes that remain in litigation are reprinted below, with Kasenberg’s original printed first, and the Conan joke that aired soon thereafter in quotes:
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.
“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,” O’Brien said. “So Brady’s giving his truck to Seahawks coach Pete Carroll.”
The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.
“Yesterday surveyors announced that the Washington Monument is ten inches shorter than what’s been previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather. Penis joke.”
Three streets named Bruce Jenner might have to change names. And one could go from a Cul de Sac to a Cul de Sackless.
“Some cities that have streets named after Bruce Jenner are trying to change the streets’ names to Caitlyn Jenner. If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack.”
A pretrial conference has been set for August, and if the parties can’t come to some agreement before that hearing, the case will proceed to trial to resolve the “genuine disputes as to material facts” regarding the remaining jokes that survived dismissal.
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