Conan O’Brien won’t be going to trial in a rare instance of a comedian suing over joke theft. On Thursday, notice came in California federal court that he, his production company Conaco, and TBS had settled a copyright lawsuit brought by Alex Kaseberg.
Kaseberg filed suit in 2015 alleging that the legendary late night host had ripped off a few of his jokes. The plaintiff asserted that Conan writers had seen his online postings and that they illicitly used material about Caitlyn Jenner, Tom Brady and the Washington Monument.
For example, Kaseberg posted on Feb. 3, 2015: “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.”
That won’t be happening. The terms of the settlement haven’t been revealed by the attorneys, Patricia Glaser for Team Coco and Jayson Lorenzo for Kaseberg.
In the summary judgment ruling, U.S. District Court Judge Janis Sammartino wrote, “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.'”
Nevertheless, the judge saw enough in three of the jokes to move forward.
For example, when it came to that Brady joke, she concluded, “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. 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… [W]hile 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 case spent several years being litigated with a detour to the Copyright Office over whether that Brady joke had enough originality to merit protection. After some back-and-forth, the Copyright Office reversed its position and ultimately accepted it.
Discovery focused on the writers room and how Conan got his jokes. The issue of whether O’Brien’s team had access to Kaseberg’s work or whether the jokes were independently created was front-and-center. As a result, the trial would have presented an inside look at the formation of late-night comedy. (O’Brien’s team coincidentally or not got in front of the settlement news with outtakes showing him in preparation.)
Jokes are notoriously tough to protect, and most of the time, comedians have special out-of-court ways to deal with thieves. Sometimes, it’s not enough. As Kaseberg settles his dispute with O’Brien, Louis C.K. has prompted a new discussion of copyright law by posting notice at comedy clubs maintaining that his joke material “may not be copied, translated, transmitted, displayed, distributed, or reproduced verbatim” in “any form, media, or technology now known or later developed” without written consent.
May 9, 1:30 p.m. After this story was posted, Variety published a column from O’Brien explaining why he chose to settle. “The fact of the matter is that with over 321 million monthly users on Twitter, and seemingly 60% of them budding comedy writers, the creation of the same jokes based on the day’s news is reaching staggering numbers,” writes O’Brien. He adds, “This saga ended with the gentleman in San Diego and I deciding to resolve our dispute amicably. I stand by every word I have written here, but I decided to forgo a potentially farcical and expensive jury trial in federal court over five jokes that don’t even make sense anymore. Four years and countless legal bills have been plenty.”