What did the comedy writer say to the comedian…? Sounds like the beginning of a good joke; but in this case, the comedy writer is suing the comedian. Robert “Alex” Kaseberg, a blogger and comedy writer, is suing talk show host Conan O’Brien, his production company, Turner Broadcasting System, Time Warner Inc., and the executive producer and head writer of the Conan show for copyright infringement over five two-beat jokes.
Kaseberg, who has been a part of the comedy scene for over 20 years, has written for many publications and has had over 1,000 of his jokes told by former late-night host Jay Leno. In 2014, Kaseberg began to notice similarities between some of the jokes he posted on his Twitter feed and blog page to those Conan O’Brien was telling in his monologues. From December 2014, to June 2015, Kaseberg found five jokes he posted repeated almost verbatim on Conan’s talk show.
The lawsuit was brought to U.S. District Judge Janis L. Sammartino who refused to toss the case and provide summary judgement like Conan and his companies would have preferred. Instead, the judge is moving the case forward towards a jury trial. Sammartino stated, “[a]lthough 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.” When it comes to comedy, copyright protection is thin at best. Facts and ideas do not get copyright protection, only expressive elements of comedy that have been added can be protected. In order for O’Brien’s jokes to infringe Kaseberg’s copyright, the jokes must be “virtually identical,” which is only one step below verbatim.
Of the five two-beat jokes, Sammartino granted summary judgement and dismissed two of the jokes leaving three to move forward. Below are the jokes in question.
Kaseberg: “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.”
O’Brien: “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.”
Kaseberg: “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”
O’Brien: “Yesterday surveyors announced that the Washington Monument is 10 inches shorter than what’s been previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather. Penis joke.”
Kaseberg: “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.”
O’Brien: “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-nosack.”
In February of 2015, after multiple attempts to contact Conan’s team, Kaseberg successfully got ahold of Mike Sweeney, head writer for the show. Kaseberg noted the call was anything but successful calling it “agonizing”. According to Kaseberg, Sweeney “angrily and loudly” denied any implication that “his writers would have anything to do with [Plaintiff’s] pathetic blog and it’s [sic] author, [Plaintiff], a no-name failure.”
O’Brien’s team released a statement about the lawsuit saying “[w]e are very pleased that the court has granted summary judgment and dismissed two of the jokes at issue. We can’t comment further on pending litigation, but we are extremely confident that once the facts are presented to a jury, we will be fully vindicated.”
It is not uncommon in the comedy world to be accused of stealing jokes. In fact, many high-profile comedians pay lesser known comedians for their material. What is uncommon is to have the accusation end in a lawsuit. Most of these accusations are handled out of court, as many comedians do not have the financial resources like talk show hosts do to pursue a court case.
Kaseberg’s attorney, Jayson Lorenzo stated, “[t]his is a victory for comedy writers, especially lesser known writers. Their works are protected, and you can’t use someone else’s material, no matter who you are, without facing liability.”
Suiter Swantz IP is a full-service intellectual property law firm based in Omaha, NE, serving all of Nebraska, Iowa, and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark, or copyright matters and would like to speak to one of our patent attorneys please feel free to contact us.