Conan O’Brien is the target of a civil lawsuit brought by a man who says the comedian stole his jokes.
Robert Kasberg claims that he posted jokes on his personal blog and through Twitter that then made their way into Conan’s monolog in a nearly verbatim fashion.
One of the jokes:
“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.”
This one appeared in Conan’s show the same day that Kasberg posted it.
Do intellectual property rights exist in jokes? My first though is – are they “good” enough to warrant copyright protection under the minimal creativity standard established by the Supreme Court in the Feist case? A single line such as, “Keep Connecticut Weird” generally falls short of copyright protection. Other phrases, those that truly approach “literary”, can be protected.
“I like to gamble, I like to smoke. I like to drink and tell a dirty joke.”
Was held not sufficiently creative to invoke copyright protection:
But the following lines were sufficiently “clever” (included enough original content) to invoke copyright protection:
“I may not be totally perfect, but parts of me are excellent” and
“I have abandoned my search for truth and am now looking for a good fantasy”
However, both of these phrases were copied from an author who used them on merchandise and were included by the infringer on competing t-shirts.
It is not necessarily the number of words in a turn of phrase that is dispositive. A lot of creativity can be packed into a relatively few words, like Edna St. Vincent Millay’s title and opening line to her sonnet, “Euclid alone has looked on beauty bare.”
The way that “current events” comedy – comedy linked to newsworthy event – is created raises the possibility that two people hearing the same news report could come up with an identical or nearly identical joke independently – that is, without copying. If two jokes were independently created and were “creative enough” to warrant copyright protection, there can be no infringement under copyright laws.
This is because copyright law does not provide an owner the exclusive right to create works. Rather, it prevents third parties from copying those works that are independently created. No copying, no infringement. One musician could write a song and another – one year later – could write the identical song and each could own a valid copyright in her own work.
Of course, the more original expression there is and the more similarity present, the easier it is to conclude that copying must have occurred. If you leave a group of monkeys in a room full of typewriters, what is the chance one of them will eventually bang out the Gettysburg Address? Not high.
I consider the joke above a possible candidate for simultaneous independent creation, but if there were many more, or other jokes that were particularly creative or clever, Conan may face an uphill battle.