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According to Conan O’Brien, being called a “joke thief” is no laughing matter.
“Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder,” he said during a deposition last September and released in court papers on Friday. “I think it’s absolutely terrible.”
O’Brien, his company Conaco, TBS and other writers on his show, Conan, have now submitted a summary judgment motion aimed at defeating a copyright lawsuit brought by Robert “Alex” Kaseberg, who claims that five jokes posted on his blog were lifted for O’Brien’s monologue. The jokes in contention include what appears to be a perennial topic: Tom Brady winning the Super Bowl.
The defendants state in court papers that Kaseberg “unsuccessfully tried to leverage his accusations into a job writing for Conan,” and now argue his “copyright infringement claims are completely frivolous.”
Kaseberg’s lawsuit is headed to a judge’s big decision, which given the paucity of joke theft cases and the sometimes liberal use of online material, is quite meaningful. In summary judgment papers, the defendants contend that Kaseberg’s copyright to his jokes is “thin” and that merely publishing something online is hardly evidence of widespread dissemination for the purposes of showing one’s “access” to copyrighted material.
The latest court papers also bring to a court of law, perhaps for the first time, the process by which a late-night comedian crafts his monologue.
According to defendants’ summary judgment brief (read here), the monologue writers typically spend the first hour of each workday crafting premises from the day’s news headlines, but don’t use social media profiles, conduct Google searches or review other comedians’ online material. After research, they email their first batch of jokes to a writers’ assistant. Jokes are revised for grammatical errors and stylistic improvements, and the batch is sent to O’Brien for review. He makes minor edits, approves jokes, and identifies topics he wants the writers to keep working on. After O’Brien’s notes come, a second batch of jokes gets crafted and submitted around early afternoon.
After rehearsal, selected jokes are sent to a research department to vet factual accuracy and to producers to vet sponsorship issues. By 3:40 p.m., a third batch of jokes is submitted for review, and soon, O’Brien, sidekick Andy Richter and the show’s head writer, Jeff Ross, meet to finalize the show’s monologue. Interestingly, during this process, jokes are presented anonymously, which according to the court papers, is by design and ensures that the quality or quantity of a particular writer’s output is not measured.
“The reason for that is so that writers don’t feel desperate … to come up with things,” said O’Brien at his deposition.
O’Brien continued during his sworn testimony that it has become “policy” to pull any joke that is somewhat similar to a joke that’s already been used.
“The only fun is to be part of the creative process and express your own voice,” O’Brien told lawyers. “That’s why it may seem surprising to you that I don’t have intimate knowledge of my business details, but the simple truth is I got into this because I’m really passionate about it, and this is like a religion to me, I take it really seriously. So the notion of stealing someone else’s comedy makes me physically ill. It’s disgusting.”
As for the jokes that O’Brien allegedly stole, his attorney Patty Glaser attempts to pick them apart one by one.
For example, there’s a joke about how the Washington Monument was surveyed to be 10 inches shorter than previously thought. On Feb. 17, 2015, Kaseberg’s blog and Conan both attributed this to “shrinkage” from cold weather — a penis joke — but the defendants say that O’Brien previously told a version of this joke during a Jan. 9, 2014, monologue.
Similarly, there are a couple of other jokes — one involving a Delta flight with just two passengers, both fighting over an armrest; the other pertaining to fans of a specific underperforming NFL team reacting to news that the University of Alabama-Birmingham is shutting down its football team — that defendants say were submitted during the creative process before Kaseberg published his.
The defendants are thus bringing arguments of prior or independent creation. They are also faulting Kaseberg for allegedly failing to register two of his jokes with the Copyright Office. And they are knocking evidence of direct infringement.
“In fact, Kaseberg’s access theory is based solely on the fact that he posted his jokes online, which is legally insufficient to establish access,” states the motion.
There’s also a pair of jokes that Conan published after Kaseberg. One involves streets named after Bruce Jenner. (Kaseberg: “One will have to change from a Cul-De-Sac to a Cul-De-Sackless; O’Brien: “If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack.”) The other addresses Tom Brady and how the NFL star said he’d give his Super Bowl MVP truck to the guy who won the game for the Patriots.
Kaseberg: “So enjoy that truck, Pete Carroll.”
O’Brien: “So Brady’s giving his truck to Seahawks coach Pete Carroll.”
The defendants assert that the setups to both jokes derive entirely from current events and news stories — and that the punchlines convey ideas. Neither facts nor ideas are copyrightable so the only thing left is whatever expressive elements have been added. But the defendants say Kaseberg’s use of commonly used expressions is only entitled to minimum “thin” copyright protection, and once the jokes are stripped of non-protectable elements, the jokes are not virtually identical.
Here’s how Team CoCo applies it to the Brady jokes:
“O’Brien elaborates on the joke’s setup by twice mentioning how nice it is for Tom Brady to give the truck away,” states the motion. “Kaseberg’s joke contains no similar reference or segue. … Kaseberg’s Tom Brady Joke also sarcastically tells Pete Carroll to ‘enjoy’ the truck, whereas the Conan Defendants’ joke is expressed in a more neutral tone. Finally, in Kaseberg’s Tom Brady Joke, the audience must infer that the truck was given to Pete Carroll. The Conan Defendants’ joke explicitly says Tom Brady gave the truck to Pete Carroll.”
What’s that old saying about having to explain the joke?
In any case, Conan O’Brien’s lawyers look to deflect any blame by pointing out how easy it is for multiple minds — both inside and outside the comedy world — to arrive at similar jokey premises.
“Taking a broader look at this issue, it is evident that parallel thought is an innate reality in the world of late-night talk shows and monologue jokes,” writes Glaser in conclusion. “Indeed, Conan’s writers testified (and declared under penalty of perjury) to this being a frequent occurrence among their own staff, and to having personal experience with it happening among other shows. Indeed, a fairly recent example of this can be seen in the monologues of Late Night With Seth Meyers and The Late Show With James Corden. During her presidential campaign, Hillary Clinton referred to Donald Trump supporters as a ‘basket of deplorables.’ Latching onto this current event, both Myers and Corden joked during their monologues that ‘basket of deplorables‘ sounds like a product offered by KFC. On top of that, several people on Twitter made the same observation, on the same premise, before either show aired. This serves to show that newsworthy events … inherently result in parallel thought, both across late-night shows, and between late-night shows and social media users.”
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