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Is the world of comedy about to experience a “Blurred Lines” moment? On Friday, a federal judge ruled that while jokes based on current events are only entitled to “thin” copyright protection, Conan O’Brien must nevertheless face allegations of lifting three jokes for the monologue of his TBS late-night show. As a result, O’Brien and Time Warner appear headed to something that almost never occurs in the humor business — a trial that would test whether Conan writers took material about Caitlyn Jenner, Tom Brady and the Washington Monument from a freelancer’s social media feed and blog.
The plaintiff in the case is Robert “Alex” Kaseberg, who takes credit for more than a thousand jokes used by Jay Leno and whose material has appeared in publications such as The New York Times and The Washington Post. In California federal court, he asserts that the copyrights on five of his jokes from December 2014 to June 2015 were infringed by Conan.
U.S. District Court Judge Janis Sammartino examined issues surrounding joke creation in weighing a summary judgment motion from O’Brien and the other defendants. She rejected Kaseberg’s claims on two jokes, but determined there are genuine disputes as to material facts on the other three. She also left the door open to Kaseberg’s proposition that the alleged infringing activity was willful.
The defendants attempted to argue that the jokes in contention used facts and commonly used expressions and were undeserving of extensive protection.
“Although largely a novel question, the Court agrees with Defendants,” writes Sammartino in her opinion (read in full here).
“Facts, of course, are not protected by copyright,” she notes. “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.'”
Sammartino thus examines the jokes to see whether they can rise to enough similarity for a reasonable juror.
One joke had to do with Caitlyn Jenner’s gender transition.
On June 9, 2015, Kaseberg posted on his blog, “Three towns, two in Texas, one in Tennessee, have streets named after Bruce Jenner and now they have to consider changing them to Caitlyn. And one will have to change from a Cul-De-Sac to a Cul-De-Sackless.”
Later that day, a Conan writer submitted a joke which O’Brien later performed, stating, “Some cities that have streets named after Bruce Jenner are trying to change the streets’ names to Caitlyn Jenner. If you live on Bruce Jenner Cul-de-sac it will now be Cul-de-no-sack.”
“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,'” writes the judge. “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.”
Then, there’s a joke about Tom Brady.
On Feb. 3, 2015, Kaseberg posted his version: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”
That night, O’Brien ran with this: “Tom Brady said he wants to give the truck that he was given as Super Bowl MVP … to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that’s nice. I do. Yes. So Brady’s giving his truck to Seahawks coach Pete Carroll.”
Sammartino sees enough to push it forward.
“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,” she writes. “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.”
The judge also sees enough similarity on a third joke involving how the Washington Monument was surveyed to be 10 inches shorter than previous thought with a nod to the cold weather and the possibility of “shrinkage.” But she’s less receptive to claims about the futility of a football team. Kaseberg wrote how the University of Alabama-Birmingham was shutting down its football program. He added: “To which the Oakland Raiders said: ‘Wait, so you can do that?'”
In the Conan version, it was fans of the New York Jets asking that question.
Sammartino believes the difference is significant enough. She writes, “To hold otherwise would grant Plaintiff’s UAB Joke the power to preclude any expression of disbelief and desire for a beloved but beleaguered sports team to also shut down their operations upon hearing the UAB news. This would fundamentally impede, rather than ‘promote the progress of’ the creative arts.'”
On a couple of jokes, the Conan writers moved for summary judgment by arguing they had created jokes before Kaseberg. With respect to a Conan joke about Delta (“Yesterday, a Delta flight from Cleveland to New York took off with just two passengers. Yet somehow, they spent the whole flight fighting over the armrest.”), the judge agrees that the evidence demonstrates that a Conan writer pitched his version at a meeting hours before Kaseberg posted his.
But in attempting to rebut the charge of illicit copying, O’Brien and his team haven’t convinced the judge there wasn’t access. The judge nods to an expert report that discussed the tight clustering of allegedly infringed jokes during a short time period and the low probability (between 0.003% and .0075%, according to the expert) of independent creation.
“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,'” writes Sammartino. “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.”
Although the judge has opened some discovery related to copyright registrations on the Tom Brady joke, the next step would appear to be preparation for trial. If the parties can’t come to a private resolution, a final pretrial conference has been scheduled for August. The prospective trial would undoubtedly reveal quite a bit of detail about how a late-night comedy show prepares and could feature other famous witnesses. For instance, one of the expert witnesses on the Team CoCo side is Patton Oswalt.
Kaseberg is represented by attorney Jayson Lorenzo. The defendants are being represented by attorneys at Glaser Weil.
In a deposition in the case, O’Brien spoke about the sting of the allegations.
“Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder,” he said. “I think it’s absolutely terrible.”
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