Accusations of joke theft are a common occurrence in the comedy world, but something that’s not a common occurrence – taking a joke theft accusation to trial – might happen soon to TBS host Conan O’Brien. According to The Hollywood Reporter, a federal judge has ruled that O’Brien must go to court over a lawsuit filed by comedy writer Alex Kaseberg in 2015, in which he accused O’Brien’s show of stealing five jokes. On Friday, Judge Janis Sammartino ruled that three of the jokes in question – in which Caitlyn Jenner, Tom Brady, and the Washington Monument are the punchline – will move forward to trial, where a jury will decide whether or not O’Brien and his writers willfully stole material from Kaseberg, who is accusing the TBS show of poaching jokes from his Twitter and blog for Conan episodes that aired on the same day. Here are the jokes in question from THR’s report:
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.”
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.”
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.
THR’s new overview of the lawsuit also mentions that Conan writers argued that their jokes were written before Kaseberg’s, but Judge Sammartino ultimately pointed out Kaseberg’s calling out of some allegedly stolen jokes on Twitter as an indication that the Conan team was aware of Kaseberg’s writing:
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.’ 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.
And in case you want to read the most boring and robotic breakdown of a joke ever, Judge Sammartino gets into all the gritty legal details for the three jokes in question and why she thinks Kaseberg’s claims should move forward – take this excerpt about the Caitlyn Jenner joke:
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.’ 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.
According to The Hollywood Reporter, the next step in the process is a “final pretrial conference” scheduled for August, which would likely lead to a full-on trial sometime thereafter. And as a late night host who has been in the business for over 20 years, Conan O’Brien is not taking these accusations lightly: “Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder,” he said in a deposition. “I think it’s absolutely terrible.” Should the case go to trial, O’Brien will have at least one comedy pro there to back him up – Patton Oswalt is reportedly credited as one of the “expert witnesses” who will testify on the show’s behalf in court. To Kaseberg’s credit, the jokes in question are very similar despite being newsy, topical monologue punchlines that could very conceivably be a case of parallel thinking. In any case, if this goes to trial, the results could be hugely significant in terms of the greater debate around joke theft vs. parallel thinking and how writers who believe their jokes have been stolen by bigger comedians and/or shows will act on their accusations going forward.
UPDATE: O’Brien’s reps released the below statement today regarding the news:
We 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.