According to late-night host, Conan O’ Brien, there is nothing worse than accusing a comedian of stealing jokes, “short of murder.” Unfortunately for Conan, his second-worst nightmare is quickly becoming reality. O’Brien will head to court and defend whether three different jokes made on Conan were original or stolen from comedy writer Robert “Alex” Kaseberg’s social media accounts.
The lawsuit—filed in 2015—asserts that Conan’s monologue jokes on Tom Brady, Caitlyn Jenner and the Washington Monument weren’t original.
An example of what’s being discussed, on June 9, 2015, Kaseberg posted to 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 night, Conan performed a similar joke: “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.”
To be fair, the inherent joke appears nearly identical, and U.S. District Court judge Janis Sammartino agrees. Her summary judgement motion hilariously explains that, “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.” After carefully weighing the differences between “sackless” and “no-sack,” the judge has decided the case should move forward to better determine if there were any intentional infringement upon Kaseberg’s copyright claims for his genitalia jokes.
Historically, it’s been incredibly difficult to defend the copyright status of specific jokes. Whereas music and film are definitively recorded to a set medium, live comedic performances tend to deviate from what’s written and can change based on audience interaction. As explained in a column on THR, it’s possible to copyright an individual performance but difficult to stop others from performing that content in their own sets. The best way to stop a joke thief is to demonstrate that the plagiarist is unfairly capitalizing on a comedian’s style in an effort to steal their audience.
A successful example of this would be Jeff Foxworthy’s lawsuit against a t-shirt company printing “You Might Be A Redneck … ” shirts. Under the Lanham Act, Foxworthy was able to maintain the phrase as being important to his “brand.” Of particular note is the court’s assertion that it takes “no offense at the possible inference, accurate or not, that Georgia might be a more advantageous forum because there are more rednecks here than in Connecticut.” We’d expect no less of a Jeff Foxworthy lawsuit.
The final pre-trial hearing will take place in August and will deal extensively with the writing process for Conan. How O’Brien and his team will fare in this case is anybody’s guess, but we’re very much hoping it’s covered in a forthcoming season of American Crime Story.