The Business Litigation Blog

Conan O’Brien Joke Theft Intellectual Property Suit to Head to Trial

There hasn’t been a joke theft lawsuit in recent memory. In the comedy world joke theft is dealt with by the comedians often in interpersonal communications or call outs. Fans will put together side by side comparison videos to shame the thief. The work ethic of the thief will be called out and they will be less respected. Rarely does any joke theft make the move to a lawsuit or any form of legal action. Carlos Mencia stole Bill Cosby’s football joke, among many other jokes. No action was taken. Louis C.K. claimed that Dane Cook stole one of his jokes; again no action was taken. This has changed with Jay Leno writer and twitter comedian Robert Kaseberg suing Conan O’Brien and his late night writers team of stealing 5 jokes.

This is because of “thin copyright protection.” “Facts, of course, are not protected by copyright,” U.S. District Court Judge Sammartino wrote. “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 Judge, however refused to toss out the lawsuit filed by a Jay Leno writer and social media comedian. Eerily similar jokes were told within a few days of being posted on twitter, once only 6 hours after the tweet was posted.  Only 3 jokes are allowed to move forward to trial. Those jokes are about Tom Brady, Caitlyn Jenner, and the Washington Monument.

It is hard to prove joke theft and the trial will be an uphill battle for Kaseberg. Kaseberg’s attorney said this is “a victory for comedy writers, especially lesser known writers,” to the New York Times. Even more interesting questions are presented in the event Kaseberg is successful.

If you have an intellectual property complaint contact Thomas E. Patterson or Patterson Law Firm at tpatterson@pattersonlawfirm.com or (312)-223-1699. 

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