Daily Dicta: This Lawsuit Is a Joke. No Really.

Conan O'Brien.

Did you hear the one about the Washington Monument, which surveyors found is actually 10 inches shorter than previously thought? You know the winter has been cold when a monument suffers from shrinkage.

Or that towns with streets named after Bruce Jenner might re-name them? One will go from cul-de-sac to cul-de-sackless.

(Is this thing on?)

Those jokes, plus one from 2015 that I don’t even get—“Tom Brady says he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll”—are the subject of a copyright lawsuit against late night host Conan O’Brien that’s barreling toward trial in U.S. District Court for the Southern District of California.

As reported by The Hollywood Reporter, comedy writer Robert “Alex” Kaseberg claims that O’Brien stole the jokes from his blog or Twitter feed and used them in his monologues.

Represented by J. Lorenzo Law, Kaseberg claims the “infringement has been willful and deliberate and was done for the purpose of making commercial use of and profit on plaintiffs material and to entertain audiences throughout the country and within this judicial district… Plaintiff is entitled to recover increased damages as a result of such willful copying.”

O’Brien, whose legal team includes power litigator Patricia Glaser of Glaser Weil Fink Howard Avchen & Shapiro, has offered multiple defenses, including that the similar jokes are a coincidence, and that his versions are different enough not to infringe the “thin” copyright protection to which the witticisms are entitled.

After four years of litigation, it’s all scheduled to come to a head in May before a federal jury in San Diego.

Part of what makes the case amusing isn’t the actual jokes (personally, if I was going to steal jokes, I’d have picked funnier ones), but how seriously U.S. District Judge Janis Sammartino analyzes them—presumably the same way she’d tackle patent infringement or employment discrimination or other weighty questions of law.

“Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright,” she wrote in 2017, when she cut two of the five allegedly copied jokes from the suit on summary judgment.

In one of the nixed jokes, Kaseberg wrote, “The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said; ‘Wait, so you can do that?’”

The following day, O’Brien on his show said, “Big news in sports. University of Alabama-Birmingham has decided to discontinue its football team. Yeah. When they heard the news, New York Jets fans said, ‘Wait can you do that? It’s something you can do?’ ”

Similar? Yes. But not similar enough, Sammartino found.

“The factual setup of the UAB discontinuing its football team is not entitled to protection,” the judge wrote. “The protectable aspect in plaintiff’s joke is instead the expression of a fictional version of the Oakland Raiders hearing that news and then commenting ‘Wait, so you can do that,’” she continued, validating the long-standing rule that jokes cease to be funny when you explain them.

“Defendants’ version changes the expression to fans (rather than team members) of a different team—the New York Jets—hearing the news and then commenting ‘wait, can you do that?’”

Her conclusion? Justice demands that the joke be excluded from the suit. “To hold otherwise would grant plaintiff’s UAB joke the power to preclude any expression of disbelief and desire for a beloved but beleaguered sports team to also shut down their operations upon hearing the UAB news. This would fundamentally impede, rather than ‘promote the progress of’ the creative arts.”

So there.

She tossed this joke by Kaseberg too: “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.”

But five hours before Kaseberg posted the joke on his blog, a Conan show writer sent a time-stamped email with his own version: “Yesterday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest.” Which meant that in this instance, despite the similarity, the Conan show couldn’t possibly have copied him.

Apparently comedy writers really do think alike.

Indeed, the Conan defense team has offered multiple examples of third parties coming up with similar jokes. For example, remember when the leader of Latinos for Trump said that if the U.S. didn’t crack down on immigration, there’d be taco trucks on every corner? That prompted Kaseberg—as well as hordes of other wits on Twitter—to respond with variations of “Dude, how’s that bad thing?”

Kaseberg’s lawyers in pre-trial motions argued this is irrelevant. “Whether various third parties came up with similar jokes after the dispute in this action arose has nothing to do with whether defendants independently created the jokes at issue in this case,” they wrote.

But the judge disagreed, ruling on Tuesday that she’ll allow five such examples as part of the defense’s bid to show that anyone “could independently create monologue-style jokes like the jokes at issue.”

She also refused to allow the testimony of two comedy experts proposed by the plaintiff. One witness, David Barsky, Ph.D, was going to opine on the statistical likelihood of “joke overlap,” but Sammartino criticized his methodology and found that his opinion “is not only unreliable but irrelevant.”

In addition, she nixed plaintiff’s expert Elayne Boosler, an experienced comedian, because a jury doesn’t actually need an authority to tell them whether jokes are similar. “Where, as here, the subject matter is not complex or technical . . . , expert testimony will seldom be necessary to determine substantial similarity,” the judge wrote, quoting Federal Rule of Evidence 702.

On the plus side—comedians Patton Oswalt and Andy Richter remain on the joint witness list, with O’Brien slated to testify too.

At this point, there should be a cover charge and two-drink minimum for the jurors. (Please tip your servers, I’m here all week.)