Late stand-up comic David Brenner once said, “You have a better chance of stopping a serial killer than a serial thief in comedy.” That’s the $450,000 question as late-night host Conan O’Brien gets ready to appear in a San Diego court on May 28 to face allegations that date back to 2015 that he and his Conan writing team stole jokes from a freelance comedy writer four years ago.
As the first real court case to test the waters of accusing a respected writing team of pinching jokes from a lesser-known comedy writer online, the trial’s likely to spark important debates about everything from copyright infringement to so-called parallel thinking, not to mention lay a foundation for every other case that could come next in this era of #FuckFuckJerry where social media is actually being used to call out would-be joke thieves.
In anticipation of what could be the comedy trial of the digital age, we’ve answered some of your toughest legal questions about the case, copyright, and who else has gone to the mat for their last laugh.
Wait, Conan O’Brien is being sued?
Yes. A comedy writer named Robert Alexander (“Alex”) Kaseberg claims that O’Brien and his writing team on Conan swiped five jokes from his blog and Twitter account in 2015. The alleged joke theft resulted in a lawsuit in which Kaseberg is seeking $450,000 in damages. The lawsuit names O’Brien and his entire production company, Conaco, as well as TBS, Time Warner, Conan TV show executive producer Jeff Ross, and head writer Mike Sweeney.
What’s perhaps most interesting about this case is that it actually has a lot less to do with alleged joke stealing and more to do with actual copyright infringement, which, legally speaking, occurs “when a copyrighted work is reproduced, distributed, performed, publicly displayed or made into a derivative work without the permission of the copyright owner,” according to Copyrightgov.com.
Essentially, Kaseberg is saying that O’Brien’s writers stole jokes that he had already posted online — and that they failed to credit him even after he called them out for it.
Who is Alex Kaseberg?
Kaseberg is a 60-year-old freelance sports and comedy writer who’s written on and off for Jay Leno and The Tonight Show for about 20 years. He’s also done some stand-up and had at least one joke used by David Letterman. He said in a 2018 interview on LaughSpin that he started posting jokes online to get jobs.
“The point of the blog and putting jokes on Twitter was just marketing,” he said. “The blog has led to a lot of freelance gigs … A lot of writers have gotten jobs as comedy writers because of blogs.”
Why did this case take so long to go to trial?
It really depends on the court, which could set a trial date and then end up postponing it as more cases end up on the court’s docket. There are only so many days in a week, month, and year to hear cases.
A lot also goes on behind the scenes in terms of paperwork and motions. Even though it may appear that a case is stalled (in this case, Kaseberg’s complaints date back four years), there could actually be much negotiating and many motions being filed within the court.
It’s also important to keep in mind that even though this case is expected to begin on May 28, it, too, could be delayed or even settled out of court before it ever even goes before the judge.
What is the difference between stealing a joke and infringing on copyright?
Because copyright protection basically applies to whatever someone creates publicly, the question for this case will be whether copyright infringement, if proven, can actually be considered theft. In most cases, the legal definition of theft usually involves the unauthorized taking of property. And while we do refer to something like a joke as intellectual property, the question of ownership usually comes down to the right to control that property as opposed to actually, well, taking it.
If it sounds complicated, it really is. The legal definitions in a case like this make it really, really hard to meet the standards required to prove actual theft, especially when it comes to something like a joke that is much less tangible than, say, a piece of art that hangs on the wall.
And this is exactly why copyright-infringement cases — especially in the comedy world — are rare, often expensive, and pretty darn risky to pursue for a plaintiff. In fact, most cases like this are apt to be settled out of court in some back room between agents and writers far from the prying eyes of media.
Is it likely that O’Brien actually stole jokes?
That will be up to the court to decide.
Kaseberg alleges that O’Brien’s team stole a total of five jokes. One of these has already been thrown out by the judge over technicalities, leaving four jokes in question. Because Kaseberg is the plaintiff in the case, to win he and his lawyers will need to prove that O’Brien and his team purposely stole the jokes and refused to give him credit for those jokes.
For his part, O’Brien doesn’t actually need to prove anything, though we already know his team is calling witnesses to testify on his behalf.
What are the jokes he’s accused of stealing?
Four different jokes are named in the lawsuit, including one that Kaseberg posted on his blog in January 2015: “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.” Kaseberg claims that O’Brien used this joke that same night on his television show.
The second joke was posted by Kaseberg on February 3, 2015: “Tom Brady said he wants to give his M.V.P. truck to the man who won the game for the Patriots. Enjoy that truck, Pete Carroll.” Kaseberg says O’Brien told this joke on his show that aired one day later.
The third joke is dated February 17, 2015: “The Washington Monument is 10 inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.” Kaseberg says O’Brien used the joke on air on February 17.
Finally, the fourth joke was about Caitlyn Jenner. On June 9, 2015, Kaseberg posted a joke 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 Cul-De-Sac to a Cul-De-Sackless”) that he says was used later that same day on Conan.
While the wording was slightly different when each of these jokes was delivered on Conan, Kaseberg and his attorneys are saying that they are similar enough that it proves they stole them from Kaseberg, who has time-stamped proof for each joke that he posted online. Each time, he alleges, he posted a joke earlier than it was used on the Conan show.
Has there been any fallout for Kaseberg after accusing such a big star of stealing jokes?
Kaseberg really doesn’t talk much about the case as it’s pending, but he did admit to LaughSpin, “As soon as the legal stuff hit the fan, everyone on [Conan] blocked me [on social media].”
If anything, people who never knew Kaseberg’s name now know it.
Did Kaseberg ever try to reach out to the show to discuss the matter?
Kaseberg claims that he called the Conan show to discuss the situation in 2015 and was connected by phone with the show’s head writer Mike Sweeney.
“I never asked them to pay me,” Kaseberg told LaughSpin. “I never asked for a job. When I initially contacted them [after he heard the jokes on the show], all I asked for was recognition. I wanted them to acknowledge those were my jokes. That’s as far as it got.”
Kaseberg said that Sweeney’s reaction to him, which he describes as “borderline horrific,” inspired the lawsuit. “He was insulting, and that was the last straw as far as I’m concerned,” he wrote on his blog in February 2015. “For what seemed like 15 agonizing minutes,” Kaseberg posted, “Mike Sweeney, the head writer of Conan, angrily and loudly denied those were my jokes. He was furious that I was accusing them of stealing jokes, but most of all he was incensed that I would suggest his writers would have anything to do with my pathetic blog and its author, me, a no-name failure.”
Will Conan testify at the trial?
The late-night host is expected to testify along with Andy Richter, his longtime sidekick, and comedian Patton Oswalt.
Richter has already shared a few thoughts on Twitter about the case, joking, “There’s no possible way more than one person could have concurrently had these same species-elevating insights! THESE TAKES ARE TOO HOT!”
Oswalt also appeared in a video for Vice News in 2017 to discuss the case and the overall scourge of joke stealing in comedy in general. “I guess it is hard to understand for some people,” he said, “that comedians come up with jokes from nothing. There’s no books, there are no spreadsheets of ideas, there’s no workbook we can fill out to get a joke. We create jokes from nothing.” He also said, “If you’re a comedian you know when something’s been stolen, when something is not right, when clearly someone is doing something that is just not theirs.”
What do we know about the case so far?
The judge in the case has already made a few initial rulings that could certainly have an impact when the trial gets started next month, like refusing to throw out the case, as O’Brien’s legal team had initially hoped. The judge also tossed allegations that Kaseberg lied about the copyright, which was another big disappointment for Team Coco.
Then just last month, O’Brien’s legal team asked U.S. District Judge Janis Sammartino to bifurcate (or divide the trial into two parts) the liabilities and damages, seeking to close the courtroom and seal the documents related to private financial information. And while the request was initially denied, Sammartino eventually came around and agreed to the bifurcation.
What this now means is that at least some parts of the trial (those dealing with financial information) will not be made public. Otherwise we can expect that the courtroom will be open to the public and media during the actual trial, even though any testimony related to financial matters will be kept strictly confidential in a closed court — quite literally.
Kaseberg was also dealt a blow recently after asking to call two expert witnesses, statistical analyst Dr. David Barsky and comedian Elayne Boosler. He wanted them to analyze the pattern of jokes that he had written to show that the Conan jokes were his. But the judge denied his request, saying that Barsky’s analysis would unfairly be based on “limited data furnished by the plaintiff,” and that Boosler’s testimony would be “neither necessary nor helpful,” according to the court documents.
Basically the judge ruled that the admission of testimony would ultimately be based on too many unsupported opinions and not enough fact that would pass muster in the Ninth Circuit. She will allow, however, each side to show evidence of other jokes with “overlapping comedic sensibilities,” making it potentially the funniest trial of the century.
What does Team Coco have to say about all of this?
O’Brien’s team denies stealing any jokes. In a statement released by his production company, they called Kaseberg’s jokes “negligible and trivial variations on unprotected ideas, preexisting works or public domain,” adding that “they do not contain the requisite amount of creative input to qualify for copyright protection.”
How hard or easy is this case to prove?
It’s actually very difficult to prove that someone intentionally infringed on copyright (er, stole a joke), particularly in comedy. To win, Kaseberg will ultimately need to prove one of two things: that his jokes were so unique that they need copyright protection, or that O’Brien’s team flat-out stole the jokes.
In some ways Kaseberg has an advantage when it comes to copyright law, specifically the Copyright Act, which, while it does not protect short phrases like Nike’s “Just Do It” (these usually get trademarked), does cover creative works of writing. This could actually work in Kaseberg’s favor since the jokes he posted online are time-stamped, thus showing that he indeed created them before O’Brien ever uttered anything like them on his late-night show. In fact, those time stamps could end up being pretty damning for O’Brien.
Have there been any other cases about joke stealing?
This case is really a first in many ways, and that’s because it’s often very difficult to prove theft of an idea in a court of law. As such, the comedy world has tried many different ways to seek retribution over perceived sticky fingers. For instance, back in the day, it’s rumored that W.C. Fields reportedly paid $50 to have a thieving comedian’s legs broken.
It’s usually the comedians who end up suing offenders who capitalize on their work or images and not the other way around, like when the creators of a play called Hand of God riffed on comedy duo Abbott and Costello’s very famous “Who’s on first?” bit. There was also the time Custom Tees tried to profit off Jeff Foxworthy’s “You might be a redneck if …” act with a line of apparel. Remember when the Gallagher brothers fought over who had the right to smash watermelons with a sledgehammer? Or when Joan Rivers sued Frank Marino for impersonating her in a Vegas show back in the 1980s? She claimed the advertising for the show was misleading, though the two eventually reconciled and ended up appearing together on TV years later. Ah, comedy.
Could the Digital Millennium Copyright Act have any bearing on this case?
Possibly, especially since Kaseberg has already presented evidence that he posted the jokes on his website and Twitter feed, both realms of digital publishing. Because the Digital Millennium Copyright Act criminalizes any dissemination of copyrighted materials online, a joke could be fair game. Like any original work that’s written or recorded, jokes are subject to copyright protection, but Kaseberg needs to prove that the jokes and not the ideas were stolen — because ideas can’t really be protected by copyright.
For example, if you make a joke about the weather and someone else also makes a joke about the weather, it would be next to impossible to prove infringement since no one actually owns the idea of weather. Where this gets murky is when language is considered — like, for example, did the second joke use the same language and cadence in joking about the weather? Did these jokes share an identical punch line? If so, it could be a case of infringement if one party can prove he or she did it first. That’s why the time stamps on Kaseberg’s posts will likely be a big deal in this case.
What happens if O’Brien loses?
If O’Brien and his team lose, he will be forced to pay damages of $450,000 in addition to any legal fees. One could argue that even worse than shelling out the money, he’d also lose face in the industry.
What about if Kaseberg loses?
If Kaseberg loses, he’ll mostly be out legal fees. The O’Brien team could countersue for damages, legal fees, or defamation, but that’s a big if.
What impact could this case have on the comedy world?
This case could have enormous consequences either way. Since stand-up comics don’t have a union or really anywhere to file any kind of formal complaint over disputes about supposed joke theft, a lot of people are left scratching their heads and punching the wall when they feel they are the victims of such a thing. While we usually see these fights play out in the media and in comedy clubs (like when Dane Cook was accused of stealing Louis C.K.’s material or even when Joe Rogan faced off against Carlos Mencia), this case — whether a win for Kaseberg or O’Brien — could have some major reverberations about how ideas are ultimately protected (or not) in the digital age.