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What Does Conan O’Brien’s Court Fight Over Jokes Mean For The Wider World Of Comedy?


Intellectual property is a complicated thing, especially in the world of comedy. With cultural trends being what they are, two different comedians can reach similar punchlines without any knowledge of the others work. However, there are still accusations of joke theft — Louis C.K.’s latest hosting spot on SNL and some of Amy Schumer’s acts have been the most recently questioned — with the latest being leveled against Conan O’Brien and his writing crew.

Freelance joke writer Robert “Alex” Kaseberg has brought a suit against the writers of Conan (and the man himself), claiming that they stole five jokes from him in 2014-2015 (including one in very poor taste of Caitlyn Jenner’s transition). U.S. District Court Judge Janis Sammartino accepted that there was a possible case surrounding only three of the jokes, however, she was inclined to agree with the defendants that “the jokes in contention used facts and commonly used expressions and were undeserving of extensive protection.”

“Facts, of course, are not protected by copyright. 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. The standard for infringement must therefore also be some form of ‘virtual identity.'”

While Conan’s team has argued that they were unaware of the jokes Kaseberg made until after they’d written their own, Sammartino was not convinced that there wasn’t any prior knowledge in ever instance.

“This probability evidence is in turn bolstered by the fact that Kaseberg tweeted writer [Mike] Sweeney after he saw Conan perform allegedly infringing joke number 2, and that Sweeney received the tweet and ‘read it as someone was saying we took one of his jokes. Together, this evidence establishes that: (1) the probability of multiple independent creations in such a tight timeframe, at least according to one expert, is highly statistically improbable; (2) 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; (3) one writer thought this development was of enough moment to discuss it with another writer; and (4) a separate group of writers was also likely on notice regarding Plaintiff and his accusations early in the relevant timeline. While not overwhelming, this nonetheless suffices to create a genuine issue of material fact as to whether Defendants had a reasonable, rather than bare, possibility of accessing Plaintiff’s jokes.”

Even if this suit doesn’t end up going to trial, the taint of even alleged joke stealing can be a real black mark on a comedian. In his deposition, O’Brien said “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.” Clearly this is not something that the late night host is taking lightly. However, anytime an established comedian is profiting off of the work of a less well known entity is cause for concern.

As they explore this case further and bring in expert witnesses (including Patton Oswalt), hopefully the integrity of the work can be maintained. Going forward, comedians will probably be a bit more careful with their work. With everyone tweeting and sharing on social media, there is always a chance that someone has already made that joke before you, and they’ll have receipts. No matter the outcome, this is surely to make the world of comedy a lot messier.

(Via The Hollywood Reporter)

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