Borrowed jokes: Idea theft is no laughing matter

Celebrity American comedian Conan O’Brien has delivered thousands of throwaway lines over two decades of fronting late-night talk shows on US television. Five of those jokes are now the subject of legal argument before a US district court.

Another comedian, Alex Kaseberg, alleges O’Brien’s Conan program stole the five jokes after he had posted the gags online. His lawsuit seeks damages of $US600,000 plus legal expenses for copyright infringement. The named defendants include O’Brien himself, several members of the Conan writing team, the program’s production company as well as Time Warner and the Turner Broadcasting System, which air the show.

The courts will ultimately decide who will have the last laugh. But the case highlights a number of important issues for all Creators wishing to protect their ideas.

Conan’s legal defence team filed their response to the lawsuit earlier this month. The document outlines five key defence arguments against the "completely frivolous" claim the jokes were lifted from Kaseberg’s Twitter account and personal blog and then reused on the Conan program in slightly amended form.

First, the defence case says, Kaseberg failed to register for copyright on two of the jokes (in most jurisdictions, copyright exists without the need to register), and therefore cannot claim copyright on them. Second, it claims to have evidence showing that two of the jokes used on the Conan program were created by the show’s writers before Kaseberg published his jokes online (if Kaseberg had PitchMarked his jokes, he would have been able to prove the date he created them).

Third, it says Kaseberg lacks "any evidence of direct infringement" or that the Conan team ever saw his jokes: "In fact, Kaseberg’s access theory is based solely on the fact he posted his jokes online, which is legally insufficient to establish access."

The fourth defence is where it gets even more interesting. Any similarities between Kaseberg’s jokes and those used on the Conan program are limited, it says, to "unprotectable facts and ideas", therefore Kaseberg cannot establish the requisite level of similarity necessary to sustain an infringement claim. Since Kaseberg’s jokes are composed "almost entirely of unprotectable elements", this defence point says, they are "entitled to 'thin protection at best', which only protects against virtual copying." Because the jokes used on the Conan program are not "virtually identical" to Kaseberg’s, there is no supportable infringement claim.

Lastly, the defence asserts the Conan team independently created their jokes, as a complete defence against infringement.

Win or lose, the defence argument demonstrates the complex obstacles to seeking legal redress when alleging idea theft. Specifically, the difficulty of proving provenance over an idea, and the limitations of copyright law to safeguard an idea unless its appropriation can be demonstrated to be an exact rip-off.

Are you a comedian? Have you had your jokes stolen? Add a comment below, or message us to tell us your story.

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