For a few years now we’ve been covering an absolutely ridiculous copyright lawsuit against Conan O’Brien claiming he and his staff had “stolen” jokes from some guy making silly one-liners on Twitter. As we noted at the time, most of the jokes at issue in the trial were topic jokes that likely lots of people might come up with. Here’s one example of one of the key jokes in the case:
On Feb. 3, 2015, Kaseberg posted his version: “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.”
That night, O’Brien ran with this: “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.”
As we pointed out almost a decade ago, especially when you’re talking about quick, topical one-liners, it’s not surprising that lots of people come up with the same exact joke. It’s certainly not “stealing.” And most of the time it’s not copying.
However, fighting a lawsuit is crazy expensive and crazy time consuming, and for whatever reason the judge decided that three of the jokes at issue in the suit needed to go to actual trial. On the eve of that trial, after the lawsuit has dragged on for almost four years, O’Brien settled the lawsuit and penned a very thoughtful piece for Variety explaining (just as was fairly obvious) that lots of people come up with these kinds of jokes, and it’s crazy to sue over that:
I knew because different people around the world come up with the same joke all the time, especially when the joke is topical. I was made aware of this 24 years ago, when, on the same night, David Letterman, Jay Leno, and I all told an identical “Dan Quayle is dumb” joke: “Dan Quayle announced today that he will not be running for President in ’96. However, he did not rule out running in ’97.” Back then, no one sued anyone because each of us knew that topical comedy often follows a pattern — it’s an occupational hazard. You try hard to avoid it, but sometimes, comedians inadvertently step on each other’s feet.
Now fast forward 20 years and add something called The Internet. On a chilly winter night, I delivered a joke about Tom Brady re-gifting his Super Bowl MVP truck to opposing coach Pete Carroll (trust me, Pete Carroll gags were hilarious back in 2015). What my writers and I didn’t know is that, at the same time, that joke was being written by literally 34 other people on Twitter, and one of those people decided he had been robbed. He then claimed we had stolen four other jokes, though we had proof that one of them was written prior to his posts.
He also notes that, in the years since the lawsuit has been filed, the same guy who sued them — Robert Kaseberg — has tweeted out a bunch of very similar jokes to Conan’s own jokes but after they’d aired. He’s not suggesting Kaseberg copies from him, just demonstrating the point that on things like this, lots of people are going to come up with the same joke ideas:
During this time, we asked our writers’ assistant to monitor our accuser’s tweets to avoid any other accidental overlap, and she discovered 15 examples where he tweeted similar jokes AFTER we had written them for my program. And this is the guy who is suing us?? Did we counter-sue? No, we did not, because I knew he had not “stolen” from us, just as we had never stolen from him.
And, he rightly notes, a ton of other people come up with similar jokes all the time, and this is exacerbated by Twitter being a platform for everyone to share those kinds of short, topical quips.
The fact of the matter is that with over 321 million monthly users on Twitter, and seemingly 60% of them budding comedy writers, the creation of the same jokes based on the day’s news is reaching staggering numbers. Two years ago one of our writers came up with a joke referencing Kendall Jenner’s ill-fated Pepsi commercial, and so did 111 Twitter users. This “parallel creation” of jokes is now so commonplace that Caroline Moss of CNBC and Melissa Radzimiski of the Huffington Post have given it a name: “tweet-saming.” And, by the way, the person who sued me also tweeted the same Pepsi joke, but only after our show and 24 other tweeters beat him to it.
But, as noted, a trial will wear you down. It’s costly in terms of legal fees, time, and emotional costs. And, thus, O’Brien agreed to settle.
This saga ended with the gentleman in San Diego and I deciding to resolve our dispute amicably. I stand by every word I have written here, but I decided to forgo a potentially farcical and expensive jury trial in federal court over five jokes that don’t even make sense anymore. Four years and countless legal bills have been plenty.
The whole thing should never have gotten this far. Simple jokes like that — like many other things — probably don’t deserve copyright at all in the first place. As we wrote over a decade ago, jokes have a long history of not needing copyright protection. Old time comedians would tell others jokes all the time, and there are tons of books that have collected jokes from all over. Most of the time, the really funny bits are in the telling of the joke — the presentation, the timing, etc. It may be a bit different online, but again, there is no need for copyright as incentive to tell jokes on Twitter of all places.
On top of that, while the system may not be perfect, social pressure has done a pretty good job in “outing” and shaming those who actually appear to be doing more nefarious things, such as directly copying others without credit. Copyright is rarely needed for such things as social shaming is effective. But, here, it seems quite obvious that there was no copying at all. It was pure independent creation. And, as Judge Learned Hand famously said years ago:
“[I]f by some magic a man who had never known it were to compose anew Keats’s ‘Ode on a Grecian Urn,’ he would be an ‘author,’ and if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”
Independent creation is not copyright infringement either (despite some courts’ terrible use of the substantial similarity test to suggest that even “subconscious plagiarism” could be infringing). And, yet, it’s totally understandable why O’Brien chose to settle. It’s just really unfortunate that the judicial system didn’t toss this case out from the beginning.