It could be the next big celebrity trial: Conan O'Brien defending himself and his writers in federal civil court against accusations of "joke-stealing" — the worst thing you could say about a comedian, according to O'Brien.
But don't go signing up for courtroom tickets just yet. Experts in copyright law say the 2-year-old copyright infringement lawsuit filed against O'Brien, his writers for his late-night show, Conan, and Time Warner over a handful of topical jokes may never get before a jury, despite a ruling by a judge that the case can proceed.
The stakes are high, not just in time and litigation costs but in "reputational" costs: No comedian wants to be known as a joke thief. "Accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder," O'Brien said in a deposition in the case. "I think it's absolutely terrible."
Thus, O'Brien and the plaintiff in the case, a freelance joke writer in San Diego named Robert "Alex" Kaseberg, have to weigh the risks and benefits of going to trial and possibly losing, or negotiating a settlement that could leave a whiff of suspected thievery in the Conan writers' room.
"Comics rarely sue one another, and to some degree this case illustrates why," says New York University law professor Christopher Sprigman , a leading expert in intellectual property law involving comedy. "The judge (in the O'Brien case) ruled the case could go forward but the ruling makes it difficult" for the plaintiff to prevail.
New York intellectual property lawyer and mediator Arnie Herz says the ruling showed the judge "did not say that anyone did anything wrong, she was saying there was enough to go to a jury."
But will it? It's impossible to predict, Sprigman says, but settling could be tricky for O'Brien.
"Among comics, joke stealing is really, really bad behavior — no one wants to go down as a joke thief, so the settlement has to make absolutely clear that no one is admitting any wrongdoing," Sprigman says. "(O'Brien) has got to worry about how his fellow comedians would react to that."
"It's no joking matter," cracks Herz, who says most IP cases are settled before trial. If a "reasonable settlement" can be achieved, it behooves all involved to resolve the case, he says.
"There are strong economic reasons to resolve this (before trial) because these are not easy cases to prevail, there are high standards plaintiffs have to prove," says Herz. "At a trial, it depends on how a jury views the plaintiff and Conan O'Brien. The plaintiff and his lawyers could end up with nothing, so they don't want to put in a ton of time and money and end up losing."
O'Brien's legal woes were on display Monday after U.S. District Court Judge Janis Sammartino ruled Friday that a jury can decide whether O'Brien and his writers stole three jokes dealing with Tom Brady, Caitlyn Jenner and the Washington Monument from Kaseberg's social media feed and blog between December 2014 and June 2015. (Two other jokes were dropped from the case.)
The Brady joke had Brady giving his MVP truck "to the man who won the game for Patriots" — Pete Carroll. The Jenner joke involved Caitlyn's gender transition and towns with streets named after Bruce Jenner. And the Washington Monument jibe was a penis joke based on news that the obelisk is actually 10 inches shorter than previously thought and maybe it was due to cold weather.
But the judge warned that jokes based on current events and news are entitled only to "thin" copyright protection — meaning the jokes in question have to be virtually identical in order to find a defendant guilty of copyright infringement, says Sprigman. Also, a jury would have to conclude that the defendant had access to the jokes and willfully copied them, Herz adds.
Unlike patents, creators can't get ownership of ideas or facts or events on which jokes are based, only the manner in which they are expressed, Herz says. Plus, the allegedly stolen joke has to be "fixed" in a tangible means of expression, either recorded or published.
"If it turns out the jokes copied from a Twitter feed were virtually identical to the jokes as told (by O'Brien), then maybe he wants to take the reputational hit and settle," Sprigman says."If there's doubt about whether they were copied or are identical, he could go to trial and roll the dice. It’s a pickle no matter what."
Intellectual property lawsuits involving comedy are exceedingly rare; it's been "decades and decades" since the last one, says Sprigman, co-author of a 2008 paper, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, that explored how comedians protect their jokes against thieves by enforcing their own comedy-community norms, and not through intellectual property law.
He and his co-author, Dotan Oliar, interviewed comedians, their lawyers and their agents, and found that comics have long employed out-of-court means of addressing accusations of theft.
"They typically handle it through community policing, they have a set of norms on joke thievery and they enforce them through various means," Sprigman says. "Copyright lawsuits typically don’t work that well (in these cases) — they're expensive and often they don't have good results for plaintiffs."
Neither O'Brien nor his lawyers returned messages from USA TODAY. Same for Kaseberg and his lawyer.
But Kaseberg said on his blog he's a comedy writer who's contributed hundreds of jokes to The Tonight Show with Jay Leno for 20 years. In a February 2015 post, he describes his version of how his jokes allegedly were stolen by O'Brien's writers.
"The only consolation I can take from this horrifying violation is I wrote three jokes that were good enough to be on the monologue on Conan. And they all got good laughs," he said. "Since I cannot watch the show again – it is too painful – and I have lost respect for one of my comedy idols, that consolation will have to be enough."