By Susan Lutzker and Nasar Khan
Comedy show host Conan O’Brien has been sued in federal district court in the Southern District of California by comedian Robert Alexander Kaseberg for allegedly stealing four jokes from Kaseberg’s Twitter postings between January and June of this year. (Complaint filed by Kaseberg’s counsel is available here.) According to Kaseberg, O’Brien performed each of the jokes in his monologue segment in his nightly show called “Conan” on the same day or one day following the day they were tweeted. While there will certainly be factual disputes as to the allegations in the complaint, the potential for a court decision to establish some jurisprudence on the long debated topic of “joke-stealing” is an interesting prospect. Here are the two versions of each of the four jokes in dispute:
Kaseberg: “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.”
O’Brien: “On Monday, a Delta flight from Cleveland to New York took off with just two passengers. Yet somehow, they spent the whole flight fighting over the armrest.”
Kaseberg: “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.”
O’Brien: “Tom Brady says he wants to give the truck he was given – as the Super Bowl MVP they gave him a truck – he wants to give it to the guy who won the Super Bowl for the Patriots. I think that’s very nice, yeah! I think that’s nice, I do! Yeah, so Brady’s giving his truck to Seahawk’s coach Pete Carroll.”
Kaseberg: “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”
O’Brien: “Yesterday, surveyors announced that the Washington Monument is ten inches shorter than what’s been recorded. Yeah! Of course the monument’s blaming the shrinkage on the cold weather. That’s a penis joke.”
Kaseberg: “Three streets named Bruce Jenner might have to change names. And one could go from a Cul-de-Sac to a Cul-de-Sackless.”
O’Brien: Some cities that have streets named after Bruce Jenner are trying to change the streets’ names to Caitlyn Jenner. Yeah. And if you live on Bruce Jenner Cul-de-sac, it will now be called “Cul-de-No-Sack”
Despite frequent accusations of one comedian stealing a joke from another, there is little case law directly addressing copyright infringement of jokes. See 1-2 Nimmer on Copyright § 2.13. It has been suggested that this is because the comedy scene has informal methods and customs to deal with alleged “joke thieves.” See “There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy,” 94 Va. L. Rev. 1787(2008) (theorizing that the informal approach to deal with joke theft is more economical than finding a remedy through the law). This approach includes both conventions (covering such matters as authorship, fair use, and transfer of rights) and sanctions (bad-mouthing, refusal to work with offenders and other reputational threats). Id. This informal system has likely been effective in deterring comedians from incorporating jokes from other comedians into their own routines to bypass the constant need to come up with new material. Id.
Often, jokes are only shared verbally and never written or published. Since such jokes are not fixed in a tangible medium of expression – one of the basic requirements for copyright – they are not protectable. But, because Kaseberg posted them to his Twitter account (with a corresponding time stamp), that potential argument is not available to the defendants in this case.
However, it is unclear whether jokes of this nature are copyrightable at all. First, Kaseberg will have to prove that his jokes are original to him and creative. Many jokes make the comedy circuit. Did Kaseberg originate Jokes 1-4 or did he hear them offered by others and then adapt them for his tweet? Even if he cannot recall whether he heard them spoken by another, copyright law has a long history of recognizing unconscious copying, so Kaseberg will have his own burden to meet.
Assuming the jokes are original to Kaseberg, he may still have trouble satisfying the legal standard for creativity. Because the jokes incorporate non-protectable factual material (for example, in Joke #1: “A Delta flight this week took off from Cleveland to New York with just two passengers”), the remaining non-factual portion may be too short, or not “creative enough,” to survive this test.
Second, closely related to creativity is the idea/expression dichotomy. A basic tenet of copyright law is that expressions are protectable and ideas are not; hence, Kaseberg will need to show that his jokes are not merely ideas. For example, is Joke #3 a creative expression or is it merely a comment reflecting the idea of cold weather and the length of the Washington Monument? Because there are sometimes only limited ways to express an idea, the expression of a joke may merge with the underlying humorous idea and be unprotectable.
Third, even if the jokes are found to constitute copyrightable content, Kaseberg will still have to prove that O’Brien copied them. The two-part test of actionable copying is (i) access and (ii) substantial similarity.
As to access, Kaseberg must show that O’Brien or his writers had access to his tweets – directly or indirectly. O’Brien may try to negate that suggestion by asserting that his jokes were the result of independent creation; in other words, that he did not have access to Kaseberg’s jokes. If the original sources of the jokes at issue were news stories reported in the media (for example, a Delta cross-country flight with only two persons aboard), the stories become fodder for comedians. O’Brien may argue that his staff combed the news for joke materials, and independently created his jokes from what they found.
Regarding the second element of copying, although the complaint alleges that O’Brien used Kaseberg’s “Jokes #1-4,” because O’Brien’s jokes do not match Kaseberg’s language verbatim, Kaseberg will have to prove that they are “substantially similar” to prevail. Kaseberg will likely argue that O’Brien copied both most of the text and the structure of the jokes, including a very similar setup, premise, and punchline. To prevail, however, Kaseberg must overcome the assertion that these jokes feature fairly standard or “stock” elements and therefore are not copyrightable. In copyright parlance, this is called the “scenes a faire doctrine.”
O’Brien may also raise a defense of fair use; i.e., that even if his jokes were inspired by Kaseberg’s, he was entitled to use the material without Kaseberg’s consent. This involves weighing four statutory factors – the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion of the work used in relation to the work as a whole; and the effect of the use on the potential market for or value of the original. Fair use is always a fact-intensive analysis. Here, other parts of O’Brien’s monologue will need to be evaluated to put these jokes in full context. If he was communicating a larger theme, fair use may have some traction. Nevertheless, the commercial nature of the show, its vast audience and O’Brien’s prominence mean he will have a hard time prevailing on a fair use argument.
So, given the sparse case law, it is difficult to predict how the case will be decided. Kaseberg starts with an uphill battle. A well-articulated decision could shed light on what level of copyright protection is available in the realm of jokes. It will be interesting to see this unfold. Stay tuned!
 Also named as defendants in the suit are Conaco, LLC, the production company for the show; Turner Broadcasting System, the television station that airs the show, and Time Warner, Inc., the television network that airs the show.
 For a general discussion of the legal aspects of joke-stealing, see “There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy,” 94 Va. L. Rev. 1787(2008) and “The Uncopyrightability of Jokes,” 35 San Diego L. Rev. 111(1998).
 17 U.S.C. §102(a).
 Re Joke #3, viewers of “Seinfeld” will remember George and Elaine’s discussion of “shrinkage” when emerging from a cold lake.
 See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985).
 17 U.S.C. §102(b); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991).
 See 4 Nimmer on Copyright §§13.01-13.03 (2015) and cases cited therein.
 17 U.S.C. §107; Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. at 552-53, 556 (1985).