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Conan O’Brien joke-stealing lawsuit can go to trial, judge says

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A comedy writer has accused Conan O’Brien and his writing staff of stealing jokes, and the case could actually go to trial. Robert “Alex” Kaseberg, who has written for Jay Leno, claims that five of his jokes, that appeared on his blog and twitter, were stolen and used on Conan between December 2, 2014 and June 9, 2015. U.S. District Court Judge Janis Sammartino dismissed two of the jokes, but allows that the other three were entitled to “thin copyright protection.”

The jokes in question (via The Washington Post):

The Tom Brady joke

Kaseberg: “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.”

O’Brien: “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.”

The Caitlyn Jenner joke

Kaseberg: “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.”

O’Brien: “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 Washington Monument joke

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: “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.”

Joke theft claims almost never go to trail as the judge noted:

“Facts, of course, are not protected by copyright,” she wrote. “And 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.”

Because of such “thin protection,” there has not been an intellectual property lawsuit concerning comedy in “decades and decades,” New York University law professor Christopher Sprigman told USA Today.

Via The Hollywood Reporter, O’Brien said in a depositition of the case, “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.” Kaseberg’s lawyer, Jayson Lorenzo, meanwhile, called the ruling “a victory for comedy writers, especially lesser known writers.”

Whether it actually will go to trial is another matter “There are strong economic reasons to resolve this (before trial) because these are not easy cases to prevail, there are high standards plaintiffs have to prove,” intellectual property lawyer Arnie Herz told USA Today. “At a trial, it depends on how a jury views the plaintiff and Conan O’Brien. The plaintiff and his lawyers could end up with nothing, so they don’t want to put in a ton of time and money and end up losing.” USA Today reports that if it happens, the trial will likely be in August. Stay tuned.

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