“There Is No Possibility Of A Coincidence”
May 17th, 2017 – Conan O’Brien and his team will soon go from telling jokes to defending them after a U.S. District Court Judge allowed three jokes to proceed to trial after a summary judgment ruling. Back in 2015, Robert “Alex” Kaseberg approached O’Brien’s writing staff about specific jokes he felt the team had stolen from his blog and Twitter account but was dismissed by the TBS titans. He then formally filed suit in July of the same year citing five jokes in total that were written between Dec. 2, 2014 and June 9, 2015 and then, as he believes, were stolen and used for Conan monologues.
Kaseberg argues on two points: that the number of times similar jokes were used during a monologue outweighs the defense of coincidence and that the span of time between when he posted the jokes to when they aired on the show explain intent and correlation.
“Two times there is an impossibly slight possibility of a joke-writing coincidence, three times there is no possibility of a coincidence,” he wrote. “And always used on the monologue one day or, in the case of the third time, six hours after it appeared on my blog and or Twitter.”
Judge Janis Sammartino ruled against two of the jokes with one reasoning being that there was proof Conan’s writers pitched their version at a meeting hours before Kaseberg posted the joke.
The three jokes on the judicial table are from February and June of 2015 and involve Tom Brady, Caitlyn Jenner and the Washington Monument.
Joke vs Joke 1:
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 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.”
Joke vs Joke 2:
Kaseberg: “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.”
O’Brien: “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.”
Joke vs Joke 3:
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 previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather.”
Judge Sammartino has stated that Kaseberg’s jokes only have “thin protection” due to, what O’Brien and his team have argued, the fact that the jokes under fire use facts, current events and commonly used expressions. “Facts, of course, are not protected by copyright,” the judge stated. “And 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.'”
While the judge has ruled that the case can go to trial, the steep litigious hill Kaseberg has to climb may mean this gets settled before it reaches that point.
“Comics rarely sue one another, and to some degree this case illustrates why,” New York University law professor Christopher Sprigman said. “The judge ruled the case could go forward but the ruling makes it difficult for the plaintiff to prevail,” the leading expert in intellectual property law involving comedy said.
In the court of public opinion, O’Brien has defended himself saying:
“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 during a deposition cited by the Hollywood Reporter. “I think it’s absolutely terrible.”