{"id":2138,"date":"2018-11-19T20:55:12","date_gmt":"2018-11-20T01:55:12","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jsel\/?p=2138"},"modified":"2023-07-25T11:43:59","modified_gmt":"2023-07-25T15:43:59","slug":"no-joke-court-dismisses-conans-affirmative-defense-in-joke-theft-lawsuit","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2018\/11\/no-joke-court-dismisses-conans-affirmative-defense-in-joke-theft-lawsuit\/","title":{"rendered":"No Joke: Court Dismisses Conan\u2019s Affirmative Defense in Joke Theft Lawsuit"},"content":{"rendered":"

\"\"<\/a><\/p>\n

On Thursday, Judge Janis Sammartino of the Southern District of California rejected\u00a0<\/a>the affirmative defenses advanced by Conan O\u2019Brien in a long-running joke theft lawsuit. The suit centers on four jokes that O\u2019Brien told on his show Conan<\/em>in 2015, which were allegedly stolen from the Twitter account of plaintiff Robert Kaseberg, a former comedy writer for The Tonight Show with Jay Leno<\/em>.<\/p>\n

O\u2019Brien\u2019s affirmative defense specifically stemmed from \u201cThe Tom Brady Joke,\u201d which he told on his show the day after Super Bowl XLIX in February 2015. The joke stated that the truck which was given to the winning team\u2019s \u201cMost Valuable Player\u201d should have instead gone to the losing team\u2019s head coach because of a controversial decision he made toward the end of the game. The structure and content of the joke were similar to a tweet written by Kaseberg earlier that same day. Kaseberg filed suit in July 2015.<\/p>\n

O\u2019Brien argued that Kaseberg defrauded the Copyright Office when attempting to register the Tom Brady Joke in August 2016. First, O\u2019Brien\u2019s team argued that Kaseberg did so by mischaracterizing the Court\u2019s opinion from an earlier order in his copyright registration documents. Specifically, Kaseberg stated that the Court had held the joke was entitled to copyright protection, omitting the fact that this came from an order stating the joke was actually entitled \u201cto only \u2018thin\u2019 copyright protection.\u201d Second, O\u2019Brien argued that Kaseberg withheld the fact that he had previously been denied a copyright on the joke when re-registering it.<\/p>\n

The Court dismissed\u00a0<\/a>both arguments. It concluded that its previous order, in which it stated that Plaintiff\u2019s joke was entitled \u201cto only \u2018thin\u2019 copyright protection,\u201d necessarily implied that some<\/em>copyright protection was warranted. Though it may have been misleading to omit the fact that such protection was \u201cthin,\u201d the Court found that \u201cthere was no intent to defraud.\u201d It also ruled that Kaseberg did not have any duty to disclose his previous copyright rejections when re-registering with the Copyright Office.<\/p>\n

While the concept of \u201cthin\u201d copyright\u00a0<\/a>does not appear anywhere in the US code, it will likely play a major role as this lawsuit proceeds. A work\u2019s copyright protection is thin when the work is \u201csimple, readily created, and descriptive or reflective of external world realities.\u201d Sammartino ruled that topical jokes like the Tom Brady Joke, which followed a conventional set-up\/punchline structure, have only thin protection. Kaseberg will therefore have to prove that the two jokes were virtually identical to prove copyright infringement. Other examples of jokes with thin protection include photographs of common objects or simple computer icons, such as the recycling bin icon.<\/p>\n

Alex Van Dyke is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).<\/em><\/p>\n

Image: The Tonight Show with Conan O’Brien<\/a>, Ryan Olsen<\/a>, CC BY 2.0<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On Thursday, Judge Janis Sammartino of the Southern District of California rejected\u00a0the affirmative defenses advanced by Conan O\u2019Brien in a long-running joke theft lawsuit. The suit centers on four jokes that O\u2019Brien told on his show Conanin 2015, which were allegedly stolen from the Twitter account of plaintiff Robert Kaseberg, a former comedy writer for 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