No Joke: Court Dismisses Conan’s Affirmative Defense in Joke Theft Lawsuit

On Thursday, Judge Janis Sammartino of the Southern District of California rejected the affirmative defenses advanced by Conan O’Brien in a long-running joke theft lawsuit. The suit centers on four jokes that O’Brien told on his show Conanin 2015, which were allegedly stolen from the Twitter account of plaintiff Robert Kaseberg, a former comedy writer for The Tonight Show with Jay Leno.

O’Brien’s affirmative defense specifically stemmed from “The Tom Brady Joke,” which he told on his show the day after Super Bowl XLIX in February 2015. The joke stated that the truck which was given to the winning team’s “Most Valuable Player” should have instead gone to the losing team’s head coach because of a controversial decision he made toward the end of the game. The structure and content of the joke were similar to a tweet written by Kaseberg earlier that same day. Kaseberg filed suit in July 2015.

O’Brien argued that Kaseberg defrauded the Copyright Office when attempting to register the Tom Brady Joke in August 2016. First, O’Brien’s team argued that Kaseberg did so by mischaracterizing the Court’s opinion from an earlier order in his copyright registration documents. Specifically, Kaseberg stated that the Court had held the joke was entitled to copyright protection, omitting the fact that this came from an order stating the joke was actually entitled “to only ‘thin’ copyright protection.” Second, O’Brien argued that Kaseberg withheld the fact that he had previously been denied a copyright on the joke when re-registering it.

The Court dismissed both arguments. It concluded that its previous order, in which it stated that Plaintiff’s joke was entitled “to only ‘thin’ copyright protection,” necessarily implied that somecopyright protection was warranted. Though it may have been misleading to omit the fact that such protection was “thin,” the Court found that “there was no intent to defraud.” It also ruled that Kaseberg did not have any duty to disclose his previous copyright rejections when re-registering with the Copyright Office.

While the concept of “thin” copyright does not appear anywhere in the US code, it will likely play a major role as this lawsuit proceeds. A work’s copyright protection is thin when the work is “simple, readily created, and descriptive or reflective of external world realities.” Sammartino ruled that topical jokes like the Tom Brady Joke, which followed a conventional set-up/punchline structure, have only thin protection. Kaseberg will therefore have to prove that the two jokes were virtually identical to prove copyright infringement. Other examples of jokes with thin protection include photographs of common objects or simple computer icons, such as the recycling bin icon.

Alex Van Dyke is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: The Tonight Show with Conan O’Brien, Ryan Olsen, CC BY 2.0.