The Joke’s On Conan
June 2, 2017
by Jerry Glover
Have you ever heard someone tell a joke that you thought was wildly funny and thought to yourself, “I wish I’d come up with that” and then you later repeat that joke to someone without attributing it to the person who told it to you? Well, that’s what a professional joke writer thought Conan O’Brien and his writers had done on several occasions. When the plaintiff’s complaints were rebuffed by Conan’s producer, he sued O’Brien, his production company and others for copyright infringement. Kaseberg v. Conaco, LLC, 2017 WL 19693000 (S.D. Cal. May 9, 2017).
Robert Kaseberg is a professional writer. Some of his writing includes jokes. According to the lawsuit, Jay Leno has used over 1,000 of Kaseberg’s jokes. He posted many jokes to his blog and twitter account. In 2014 and early 2015, Kaseberg noticed that several jokes used during O’Brien’s monologues were similar to five jokes he had posted online (it later turned out that one of the Kaseberg jokes was posted online after the O’Brien monologue so it was not included in the court’s ruling).
Here are the Kaseberg jokes and the O’Brien “equivalents”:
The UAB Joke:
Kaseberg—“The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said, ‘Wait, so you can do that?’” Posted on Kaseberg’s blog site.
O’Brien—“Big news in sports. University of Alabama-Birmingham has decided to discontinue its football team. Yeah. When they heard the news, New York Jets fans said, ‘Wait can you do that? It’s something you can do?’”
The Delta Joke
Kaseberg—“Yesterday, 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.” Submitted to Conan for use on O’Brien’s show. Kaseberg also posted a version of this joke on his blog: “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 performed a version of this joke in his monologue. Kaseberg tweeted Conan’s producer noting the similarity of the jokes and asking to be allowed to contribute more. The producer did not reply.
This joke was excluded as part of the litigation because evidence showed Kaseberg posted it after a Conan writer had submitted that joke to the show.
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.” Posted by Kaseberg on Twitter.
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.”
Kaseberg sent a tweet to a writer on Conan who forwraded it to the show producer. Kaseberg also called and left a message for the producer. Again, the producer did not respond but the producer did ask other Conan writers about Kaseberg.
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.” Kaseberg posted this joke on Twitter and on his blog.
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. Penis joke.”
Kaseberg against called the producer and they spoke. According to Kaseberg, the producer denied any suggestion that the show’s writers “would have anything to do with Kaseberg’s pathetic blog and its author, a no-name failure.” Kaseberg’s attorney sent a letter to Conoco, LLC about the jokes but no resolution was reached.
The Jenner Joke
Kaseberg—“Three towns, two in Texas, on 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.” Posted by Kaseberg on Twitter and his blog.
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.”
Kaseberg then sued for copyright infringement.
As to the question of whether the defendants had copied Kaseberg’s jokes, the court noted that, as in most copyright infringement cases, the plaintiff had no evidence of direct copying. The question remained then whether Kaseberg could show that the defendants had access to Kaseberg’s jokes and whether the Conan jokes are substantially similar to Kaseberg’s jokes.
To show access the trial court noted that plaintiff must show that defendants had a reasonable opportunity to view Kaseberg’s work—not a bare possibility, but a reasonable opportunity. The plaintiff can show this by proving either a chain of events between the plaintiff’s work and the defendant’s access to that work or that plaintiff’s work was widely disseminated. The court reviewed the chain of events especially the short period of time in which several of Kaseberg’s jokes seemed to have been used by O’Brien, Kaseberg’s on line postings, Kaseberg’s conversations with the show producer and the producer’s conversations with show writers about Kaseberg’s infringement claims. The court held this was enough evidence to create a genuine issue of material fact as to whether the defendants had a reasonable possibility of accessing the plaintiff’s jokes. Therefore, the court refused to grant the defendants’ motion for summary judgement.
The court also looked at the element of similarity noting that determining similarity of jokes presented a novel question for the court. The court used the approach mandated by the Ninth Circuit Court of Appeals to determine similarity: use of an “extrinsic test” which is an objective measure of the articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events. But the court must first remove elements that are not protected by copyright from the material in question before it determines whether the remaining material is even protectable. Whether a copyrighted work is composed largely of unprotectable elements that material only has a “thin” scope of copyright protection. The court determined that the jokes each merit copyright protection. But because the method of writing a joke is constrained by its subject matters and the humor conve3tnions of a two-line, setup-and-delivery paradigm, the protection was “thin.” Otherwise, the court noted, the first person to tell a joke will “corner the market.”
Although the plaintiff’s jokes and the defendants’ jokes were not identical, they were “objectively virtually identical.” Therefore, a triable issue of fact remained regarding whether a jury would find the similarities to be, in fact, virtually identical within the contest of the entire joke. Therefore, the court allowed the case to go forward with a trial before a jury.