Way back in 2015, as part of a report on Twitter cracking down on supposed joke thieves, we noted that a freelance comedy writer named Robert Alexander Kaseberg had filed a lawsuit against Conan O’Brien and the staff of his Conan show for allegedly stealing some jokes from his Twitter and personal blog. Now, The Hollywood Reporter says that a judge has decided to hear the case, so O’Brien must actually go to court and defend himself and his writers against these accusations.
The specifics of this case are very dry for a lawsuit centered on stealing jokes, but the gist of the defendants’ argument is that jokes based on current events or utilizing “commonly used expressions” do not deserve fully copyright protection, since two people could theoretically witness the same thing and come to the same humorous conclusion without necessarily stealing from each other. The judge—Janis Sammartino—agrees with this to a point, since facts can’t by protected by copyright and there are only so many ways to phrase a punchline, so convincing a jury that the jokes were overly similar would have to depend on establishing that they share a “virtual identity”—which is to say that the structures of the jokes would have to be basically the same.
So, to determine whether or not there could be any meat to that argument, the judge went through and unpacked Kaseberg’s original jokes and the versions O’Brien told on his show, and the weirdness of the result is way funnier than either joke ever was. You can see it in this deconstruction of a stupid gag about streets named after Bruce Jenner being changed to Caitlyn, with Kaseberg saying that a cul-de-sac would become “cul-de-sackless” (ugh) and O’Brien saying that a cul-de-sac would become “cul-de-no-sack” (also ugh). Here’s Sammartino’s take:
Although Conan changes the punchline from “sackless” to “no-sack,” the framing is identical: 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 involved Tom Brady saying he would give the MVP truck he was awarded after the Super Bowl to “the man who won the game for the Patriots,” with both Kaseberg and O’Brien saying he’d give it to Seahawks coach Pete Carroll. Here’s Sammartino:
Plaintiff’s protectable expression is his implication that a fictionalized Tom Brady would therefore give his truck to the coach of the opposing team, Pete Carroll. And although the Conan joke takes an active stance…the fundamental expression is the same, i.e., that there was no doubt Brady would be giving his MVP award to the opposing team’s coach. As previously stated, while not exactly identical, the jokes are sufficiently objectively virtually identical to create a triable issue of fact regarding whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.
Kaseberg is suing over five jokes in total, and Sammartino went through each one like that to see if it would be possible for a jury to determine if each one is virtually identical. She rejected two of them, one because a Conan writer was able to prove that they pitched their joke in a meeting before Kaseberg posted his, and another because the Conan punchline was just different enough. Still, that leaves three jokes in contention, and the THR story says that O’Brien and his team have been unable to convince Sammartino that they didn’t see Kaseberg’s tweets before pitching the jokes. In fact, there’s even evidence that one writer knew Kaseberg had accused the show of ripping off one of his jokes in the past, so it stands to reason that people on the Conan staff were at least aware of Kaseberg’s existence.
The case is now moving forward, and assuming a settlement isn’t made in the next few months, the two sides will meet for a pretrial conference in August. THR seems surprisingly excited about that, noting that it will “undoubtedly reveal quite a bit of detail about how a late-night comedy show prepares” and that it might feature “famous witnesses” like Patton Oswalt. We just hope Judge Sammartino cracks a few jokes of her own and turns it into a proper party.