Who gets last laugh in battle over Conan jokes?

U.S. judge, ruling jests can get ‘thin’ copyright protection, advances to trial a writer’s suit claiming that O’Brien, his team infringed on timely quips posted on Twitter about Tom Brady, Caitlyn Jenner, Washington Monument

Comedian Conan O’Brien, NFL quarterback Tom Brady, transgender celebrity Caitlyn Jenner, and the Washington Monument all walk into a bar one day. And O’Brien says … Wait, wait, why is gag-writer Alex Kaseberg not laughing at or liking much this joke set up?

It may be because the one-time writer for comic legend Jay Leno has accused O’Brien and his one-liner squad of  stealing jokes from him for the lanky red-head’s TBS late-night show off of Twitter.

U.S. District Court Judge Janis L. Sammartino in San Diego has rejected two of Kaseberg’s claims but has found that three jokes involving Brady, Jenner, and the capital landmark pose genuine issues of material facts. The judge has snapped off any laugh tracks and sent comedy into a new legal realm by allowing for now Kaseberg’s suit against O’Brien to proceeed to trial. Pa-dum. So when a comic star and writer walk into court, what might be said, or, um, argued?

Kaseberg asserts that O’Brien’s writers infringed on his copyrights on five of his jokes from December,  2014, until June, 2015. The dispute can be traced to January, 2014, he claims, when he said he Tweeted his first joke, writing: “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.” Kaseberg says O’Brien that day made a substantially similar joke on his show.

The writer was un-amused and filed his original complaint. The writer also sought, using the social media site’s online process, to get O’Brien’s Tweets pulled down. His gripes, meantime, were denied and derided by O’Brien’s writers. Click here to see their Tweets.

As for O’Brien, he has argued that the disputed jokes were developed by he and his team (and delivered by him, of course) employing facts and commonly known expressions undeserving of copyright protection. He was quoted as saying, “Accusing a comedian of stealing a joke is the worst thing you can accuse then of, in my opinion, short of murder. I think it’s absolutely terrible.”

In a brief seeking summary judgment, O’Brien’s writers told the court that they launch their work day with a first hour of crafting jokes from daily news headlines. They don’t scroll social media in this process. Once the writers’ jokes are crafted, they are reviewed for grammatical errors and potential stylistic improvements, then go to O’Brien for review. He sends back notes. The revised jokes are tested in a rehearsal. They then go to the show’s research department, which checks the material for factual accuracy, while producers determine if the jests create any sponsor issues.

O’Brien and his team have argued that Kaseberg failed to copyright two of the disputed five jokes. Part of the defense strategy and tactics also turns on trying to undercut Kaseberg’s infringement claim by showing how easy it is to create similar material.

Sammartino ruled recently that jokes based on current events are entitled to “thin” copyright protection. She specifically examined issues that centered around “joke creation.” She sought to clear up, perhaps, a subject of wider public wonder: What’s the legal difference between facts and jokes and why jests may be protected. As she notes, “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.”

She also sought to determine if jokes had sufficient similarity to a reasonable juror. Consider the Caitlyn Jenner joke:  Kaseberg posted, “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, on Conan’s TBS show, he cracked: “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.”

Although the show’s punchline differed, the judge found the two jokes’ framing are identical. As for the Brady quip, she also noted its two versions, by the writer and O’Brien, were objectively virtually identical and had the same fundamental expression.

Sammartino expressed doubt about the claims by O’Brien’s writers that they created their jokes before Kaseberg did his. The judge also was unconvinced that O’Brien’s team lacked access to Kaseberg’s material, though she noted that her view was limited to what she learned quickly from an expert’s report.

That study, she said, looked at the tight time frame in which timely humor gets created and the low probability that it gets created independently. She said the study examined: (1) the probability of multiple independent creations in such a tight time frame, which one expert termed highly statistically improbable; (2) whether at least two Conan writers were on notice that a Tweeter was implying or asserting that the O’Brien staff was copying jokes; (3) if at least one O’Brien writer thought the social media claim of joke-stealing was key enough to discuss it with colleagues; and (4) whether other O’Brien writers knew of Kaseberg and his accusations.

The judge set an August conference in the case. But will that focus session on disputes on Kaseberg’s copyright registrations or some resolution of a case that could add legal, unhappy complications to a business of laughs.