The drama is building in the comic clash between TBS late-night talk show host Conan O’Brien and comedy writer Alex Kaseberg over jokes Kaseberg claims O’Brien and his writing team stole from him. As previously reported, O’Brien was able to knock out two of the five jokes in question on summary judgment on the grounds that they were independently created and/or too different for a reasonable juror to conclude they were copied, but three of Kaseberg’s jokes remain standing. A jury trial is scheduled to begin this May.
In the trial brief O’Brien filed last month, O’Brien raises a funny bone of contention: are Kaseberg’s jokes even original enough to warrant copyright protection at all? The brief asserts that “Kaseberg’s jokes are negligible and trivial variations on unprotectable ideas, preexisting works, or public domain works, such that they do not contain the requisite amount of creative input to qualify for copyright protection.”
Kaseberg’s jokes, like many jokes, pertain to news stories and current events. The three jokes in question consist of a gag about New England Patriots’ quarterback Tom Brady giving Seattle Seahawks coach Pete Carroll the new truck Brady promised to award the MVP of Super Bowl XLIX, a jeer about a hypothetical street named after Bruce Jenner (i.e., “cul-de-sacless”), and a discovery that the Washington Monument is ten inches shorter than previously thought because of “shrinkage” resulting from cold weather. Only the expressions of these humorous ideas, not the ideas themselves, are copyrightable. And, as O’Brien’s brief notes, expressions that are “standard, stock, or common to a particular subject matter are not protectable under copyright law.” However, Kaseberg’s brief stresses the low standard of originality the Copyright Act requires and contends all that is needed is “some creative spark, no matter how crude, humble or otherwise.”
In the event the jury finds Kaseberg’s jokes “original” enough to be copyrightable, Kaseberg will still have to demonstrate O’Brien’s jokes were “virtually identical” to Kaseberg’s – a much higher standard than the typical “substantial similarity” test. Since Kaseberg’s jokes contain inherent newsworthiness, the Court found they could only receive thin copyright protection which requires the copying to be nearly verbatim to be actionable.
O’Brien argues Kaseberg falls well short of this standard, claiming the jokes are “worded differently, convey different actions, contain different levels of information, and involve different perspectives.” O’Brien also claims differences in structure and delivery (O’Brien entertaining a live audience and Kaseberg writing his jokes in print) defeat Kaseberg’s claim.
Specifically, the differences in the Superbowl joke O’Brien identifies include the fact that O’Brien’s punchline (“So, Brady is giving his truck to Seahawks coach Pete Carroll”) was delivered in a neutral and sarcastic tone whereas Kaseberg’s punchline (“So enjoy that truck, Pete Carroll”) was more caustic and directed to Carroll.
With respect to the Washington Monument joke, O’Brien cites the fact that Jimmy Fallon tweeted the joke the day before Kaseberg published it, suggesting the joke is not original to Kaseberg. O’Brien also pointed out that his punchline stating the monument, itself, was blaming the “shrinkage” on cold weather vs. Kaseberg’s jest “You know the winter has been cold when a monument suffers from shrinkage” distinguishes the jokes in that O’Brien sarcastically implies other factors shrunk the monument while Kaseberg solely attributes the weather to the shrinkage. Finally, with respect to the Jenner joke, O’Brien claims the difference in punchlines “Cul-de-Sackless” vs. “Cul-De-No-Sac” is significant, as well as the fact that O’Brien’s joke was directed to the residents of the street whereas Kaseberg’s jeer was not.
Kaseberg’s brief acknowledges the Court’s finding that the jokes must be “virtually identical” to be actionable, but claims that this standard is met – especially in light of Kaseberg’s allegations that O’Brien told these jokes on his show the same night after Kaseberg posted them. A funny coincidence? Kaseberg thinks not.
It remains to be seen who will have the last laugh in this dispute, but with trial briefs submitted and less than four months before showtime, it appears this case will reach a grand finale.