Turns out that some funny business can occur in, well, the business of being funny. Conan O’Brien – host of his own talk show on TBS, former writer and producer for The Simpsons, and more famous than Andy Richter – was sued for copyright infringement back in July of 2015.[1] As a result of proceedings in this case, a comedian’s joke-writing process is, for perhaps the first time in a court of law, being examined to determine the extent to which a comedian’s ideas are protected from copying.[2]
In his complaint, Robert Kaseberg demanded six figures in statutory damages.[3] In response, Conaco, the company behind Conan, maintained that there was no merit to Kaseberg’s lawsuit.[4] Kaseberg, a former writer for The Tonight Show with Jay Leno, alleges that the first of the “stolen” jokes, originally published on January 14, 2015, reads, “A Delta flight this week took off from Cleveland to New York with just two passengers. And they fought over control of the armrest the entire flight.”[5] That same day, Conan made an almost identical version of that joke on his show, only changing “this week” to “On Monday.” [6] The other allegedly stolen jokes were on the topics of Tom Brady and the Washington Monument, and also displayed the same level of similarity to those made by O’Brien on his show. [7] After discovery, Kaseberg further alleged that O’Brien had stolen a joke of his about the Oakland Raiders. [8]
Additionally, Kaseberg managed to obtain a judge’s permission to increase the number of depositions to thirteen.[9] This number includes O’Brien himself, writers Jeff Ross and Josh Comers, and co-host Andy Richter.[10] Kaseberg also obtained an order for the production of e-mails in order to “establish the daily routine, timing, processes, policies, and procedures of Conaco, LLC when it is creating and preparing jokes for use on the Conan show monologue.” [11] This means that Conan O’Brien’s joke-writing process for his show will now be revealed to and analyzed by a court of law in order to determine whether copyright infringement against Kaseberg has occurred.
Last month, O’Brien and his team submitted a motion for summary judgment, asserting that Kaseberg’s “copyright infringement claims are completely frivolous.”[12] Additionally, O’Brien alleges that Kaseberg “unsuccessfully tried to leverage his accusations into a job writing for Conan.”[13] Kaseberg had indeed spoken on the phone with Mike Sweeney, head writer for the show, about contributing to Conan since they apparently had such similar senses of humor.[14] Furthermore, the motion states that Kaseberg’s copyright to his jokes is “thin” – Kaseberg was found not to register a copyright for two of the five jokes in question – and that simply publishing them online does not constitute conclusive evidence of widespread dissemination that demonstrates access to the copyrighted material.[15]
Under threat of perjury, writers for Conan testified that the phenomenon of parallel thought has been a regular occurrence amongst themselves, and have seen it happen with other shows as well.[16] For instance, after Hillary Clinton’s widely publicized “basket of deplorables” comment during the 2016 presidential election, both Seth Meyers and James Corden joked on their respective late night shows that a “basket of deplorables” sounds like something offered at KFC.[17] Conan himself has stated that the idea of being accused of stealing jokes makes him “physically ill.” [18] With recent developments in this case unfolding as they are, it looks like we’re about to enter a brave new world of copyright law when it comes to comedy.