Writer alleges Conan's team lifted gags from his blog

Accusations of joke theft are rife in the comedy world – but rarely do they make it to court.

However, an American courtroom could witness a legal showdown between Conan O’Brien and a writer who claims his gags were stolen for the talk show host’s monologues.

Robert Alexander Kaseberg said he posted several jokes online that the late-night comedian repeated almost verbatim on his TBS show, Conan.

And a federal judge in San Diego refused to toss out the lawsuit last week, paving the way to a full legal hearing.

Janis Sammartino said in her summary that  Kaseberg –  who has previously written for rival talk show host Jay Leno  noticed ‘similarities between his posts and several of the jokes used in the late-night television show’ in late 2014 and 2015.

She tossed out claims on two jokes, but allowed the lawsuit to proceed on three others, but acknowledges the law provides ‘thin copyright protection’.

She commented: ‘Facts, of course, are not protected by copyright. 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".’

Kaseberg has been seeking more than £125,000 per joke, described as 'literary works' in the court papers.

Allegations of isolated joke theft have traditionally proved hard to back up, especially when they concern the limited pool of subjects mined by topical comedians, which could lead to the same punchlines coming up by coincidence.

Also the law does not offer copyright protection for ideas, only  the way  those ideas are expressed, leading to a big grey area concerning similar jokes.

It means the comedy world is often left to self-police, with the threat of becoming a pariah usually enough to deter comics 

The lawsuit names O’Brien, his production company  Conaco, TBS, Time Warner Inc, and the executive producer and head writer of the show – who have denied the claims, saying the material was original. 

In his deposition, O’Brien acknowledged: ‘Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder. I think it's absolutely terrible.’

However, many commentators expect the case won’t make it as far as the courtroom, with the two sides tipped to come to a settlement instead.

Read the judge’s full 28-judgment here.

What are the contested jokes?

On January 14, 2015, Kaseberg wrote on his blog: '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 cracked a similar joke on his TBS show that night. However the ground is muddied as  Kaseberg admits he  took the premise from an earlier Conan gag: ‘A Delta flight from Cleveland to New York took off with only two passengers. And they still managed to lose their luggage.’

This gag was thrown out of the legal case by the judge.

But another joke still being contested involved the Superbowl. On February 3, 2015, Kasebrg posted: 'Tom Brady wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.' [Carroll is the coach of the Seattle Seahawks, who the Patriots defeated].

Conan’s monologue featured an almost identical joke,  but with the more directpayoff:  ‘So Brady’s giving his truck to Seahawks coach Pete Carroll.’

The  incident prompted Kaseberg to get in touch with Conan’s head writer, Mike Sweeney, explaining his  concerns. Nevertheless, Kaseberg  alleges another gag was stolen just two weeks later. 

On February 17, he posted: 'The Washington Monument is ten inches shorter than previously thought You know the winter has been cold when even a monument suffers from shrinkage’ – which was again very similar to a gag Conan cracked in his monologue that night, airing  six hours later.

Then on June 9, 2015, Kaseberg posted a  joke about Caitlyn Jenner's gender transition. ‘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 day, Conan  said: ‘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.’

Another joke thrown out by the judge involved useless football teams. Kaseberg wrote how the University of Alabama-Birmingham was shutting down its football program. He added: ‘To which the Oakland Raiders said: "Wait, so you can do that?" The Conan version had fans of the New York Jets asking the same question.

In a blog post about his experience, Kaseberg  quipped: ‘In the end, getting three jokes nicked by Conan was sort of how I imagine having sex with Madonna would be: Yes, I got screwed. But it was a lot more fun to tell people about than to experience.’

Published: 16 May 2017