"Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder," O'Brien said. "I think it's absolutely terrible."
Last week a federal judge ruled that the lawsuit against Conan O’Brien and Time Warner will be heading to trial.
Robert Kasenberg, a freelance writer in Los Angeles claims that Conan and his writing staff have stolen five of his jokes in the time frame of December 2014 to June 2015. Robert said that the writing staff used his jokes without his permission or any sort of writing credit.
The problem with writing about current events, like Conan's staff does regularly, is that it blurs the line in theft. Think about it, when 100 comedians are writing about Kim Kardashian's three day vacation on some island, it raises the stakes that one or two of those thousands of jokes written will be parallel.
U.S. District Court Judge Janis Sammartino examined Robert's claims and dismissed two of the jokes in this case, and was quoted saying;
"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 standard for infringement must therefore also be some form of 'virtual identity.'"
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Comedy copyrighting is not really a thing. The unspoken rule (which I don't support) has always been, "Whoever gets to television with it first." Meaning, you have two comedians doing a similar joke and whoever performs that joke in their set on a televised talk show or Late Night Show owns that joke.
Very similar to when you were a child and there was only one Popsicle left, whoever licks the popsicle first now owns that Popsicle.
Robert claims he owns these five popsicles but Conan licked them first.
Here is an example of one of the parallel jokes in question:
Kaseberg 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.”
Conan O'Brien's monologue 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.”
Robert Kaseberg is not just a nobody blogger by any means. He has written thousands of monologue jokes for Jay Leno and the Tonight Show. Robert also has contributed jokes in many publications including The New York Times.
We are going to open the comments section up on this one. We want to hear what you think. Does Robert have a case? How can we better copyright jokes moving forward? Have you ever licked a popsicle and called dibs? We want to hear from you!