With all the witty observationalists on Twitter these days, there are only so many jokes about current events that don’t end in the same punchline.
But when one late night show repeatedly tells jokes similar to those written by a single social media account — well, that’s certainly no laughing matter!
That’s the conundrum Conan O’Brien is facing after being accused of ripping off three jokes for the monologue of his TBS late night show from a Twitter humorist.
A federal judge ruled on Friday that while jokes based on current events are entitled to “thin” copyright protection, a trial will test whether the writers of Conan lifted material from Alex Kaseberg‘s social media feed and blog.
Kaseberg takes credit for over a thousand jokes used by Jay Leno and has published material in The New York Times and The Washington Post. He asserts in California federal court that the copyrights on five of his jokes from December 2014 to June 2015 were infringed by Conan.
U.S. District Court judge Janis Sammartino rejected Kaseberg’s claims on two jokes, but determined there were genuine disputes as to material facts on three jokes about Caitlyn Jenner, Tom Brady, and the Washington Monument.
The writers tried to argue that the jokes in question used facts, which are not protected by copyright, and commonly used expressions — though the judge conducted a much more detailed joke-theft analysis, telling the court:
“Although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke’s previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of ‘virtual identity.'”
So, what were the actual jokes? On June 9, 2015, Kaseberg commented on Jenner’s gender transition on his blog, quipping:
“Three towns, two in Texas, one in Tennessee, have streets named after Bruce Jenner and now they have to consider changing them to Caitlyn. And one will have to change from a Cul-De-Sac to a Cul-De-Sackless.”
Later that day, a Conan writer pitched a joke which the late night host later performed, saying:
“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.”
The judge concluded that while the punchline was changed, the framing is “identical,” writing:
“The change happens to the observer no matter what, and that change is the removal of the sac from ‘cul-de-sac.’ Although these jokes are not exactly identical, that is not the test. There is a genuine issue of material fact whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.”
Another joke in question is about Brady, which Kaseberg posted on February 3, 2015:
“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.”
Later that night, O’Brien uttered something similar on TV:
“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.”
Like the Jenner joke, the judge states that this stinger is “not exactly identical” to Kaseberg’s, but “the jokes are sufficiently objectively virtually identical.”
Also falling into theft territory was a third joke about how the Washington Monument was surveyed to be ten inches shorter than previously thought, with each referencing the cold weather and the possibility of “shrinkage.”
The Conan writers moved for a summary judgement on a couple of jokes, arguing the had created the ideas before Kaseberg did. In regards to a Conan joke about Delta, the judge agrees the evidence demonstrates that a Conan writer pitched his joke at a meeting hours before Kaseberg posted his online.
But the TBS team didn’t get off the hook for every claim, especially since Kaseberg tweeted writer Mike Sweeney about the alleged appropriation.
The judge noted this piece of evidence established that “at least two Conan writers were on notice that someone on Twitter was either implying or asserting that the Conan staff was copying his jokes,” and suggests the Defendants “had a reasonable, rather than bare, possibility of accessing Plaintiff’s jokes.”
The next step in this mess will be preparation for trial. If the parties can’t come to a private settlement, a final pretrial conference has been scheduled for August. Then, we assume, an epic joke-off will take place in court.
O’Brien spoke about the allegations in a deposition in the case, admitting:
“Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder. I think it’s absolutely terrible.”
See, this is exactly why Jimmy Fallon sticks to playing drunk twister. (Don’t steal that from us, Conan!)
[Image via TBS.]