A recent decision in the civil case against Conan O'Brien is no laughing matter for the late night host. Writer Alex Kaseberg filed suit in 2015 over a series of jokes that he claims were stolen from his blog and Twitter feed. The federal judge hearing the copyright infringement claims ruled that three of the five allegedly infringing jokes can proceed to trial.
Kaseberg, who writes a comedy blog, alleged that Conan O'Brien, as well as others, stole and published his jokes. The jokes alleged to have been stolen were written about current events, and though none were stolen word for word, the similarities are obvious.
The three jokes that are still in question include one joke about Caitlyn Jenner's transition, one about Tom Brady's MVP prize truck, and one about the Washington Monument suffering from "shrinkage."
In February 2015, Kaseberg published a joke about Tom Brady giving the pickup truck he was awarded as a prize for being the Super Bowl MVP to the losing team's coach. On the same night Kaseberg published the joke, O'Brien used the same joke, inserting a little extra banter between the setup and punch-line.
Also in February 2015, Kaseberg published a joke about the Washington Monument being surveyed as 10 inches smaller than previously believed. The joke attributed the newly discovered smaller size to the Seinfeldian concept of shrinkage. O'Brien used the same joke, though the setup and punch-line was different.
In June 2015, when the news of Caitlyn Jenner's transition was still fresh, Kaseberg wrote a joke about cities with streets named after Jenner. O'Brien, on the same night as the joke was published by Kaseberg, told a strikingly similar joke.
You Gotta Fight for Your Copyright
Under copyright laws, creative works are afforded protection regardless of whether a copyright is registered or not. However, proving infringement requires more than just showing the jokes are similar. As the court pointed out, facts are not protected by copyright, and jokes about current events are often limited by the available facts and society's sense of humor. The opinion actually explains that in at least one instance, it was proven that similar jokes were arrived at independently. The joke the court found was independently arrived at by both O'Brien and Kaseberg was excluded, along with one other the court found to be too dissimilar to warrant protection.
The court further explained that due to the nature of these jokes, the protections afforded may be rather slim. Though the case can proceed to trial, the judge's decision seems to imply that a jury is likely to find against Kaseberg.