Conan O’Brien says he has settled with a San Diego man who accused the late night host of stealing jokes.
Robert Alexander Kaseberg sued O’Brien and his writing staff in 2015, alleging that they stole five jokes from Kaseberg’s blog and Twitter account. The Associated Press reports that attorneys for both sides of the case filed court documents about three weeks before a trial was slated to begin in San Diego federal court, and that terms of the deal were not disclosed.
In an essay for Variety titled “My Stupid Lawsuit,” O’Brien explains that he decided to settle with Kaseberg to avoid “a potentially farcical and expensive” jury trial. “Four years and countless legal bills have been plenty,” he said.
O’Brien maintains that he and his staff had never heard of Kaseberg, his blog or Twitter account and did not steal his jokes.
“Short of murder, stealing material is the worst thing any comic can be accused of, and I have devoted 34 years in show business striving for originality,” O’Brien writes. “Had I, for one second, thought that any of my writers took material from someone else I would have fired that writer immediately, personally apologized, and made financial reparations.”
Kaseberg acknowledged the settlement on Twitter with a topical joke: “While I am happy the case has been settled, I would like to officially apologize to HBO for leaving my coffee cup on ‘The Game of Thrones’ table.”
The case was unusual because litigation around fairly low-dollar-value creative work is rare.
The judge in the case threw out two of the jokes Kaseberg said were stolen but found that three of them were “sufficiently objectively virtually identical” for the case to proceed. Kaseberg’s lawyers would have needed to show that O’Brien and his staff willfully infringed on Kaseberg’s copyrights.
Aaron Perzanowski, a professor on intellectual property law at Case Western Reserve University, explained to NPR in 2017 that just because two things are similar doesn’t mean that one is a copy of the other.
“If you put a copy of the day’s newspaper in a room with 100 different comedy writers, you’re going to see lots of the same jokes where lots of people are circling the same formulation and often the same punchline independently,” Perzanowski said. “That doesn’t mean they’re copying from each other. But people do have a tendency, when they see those similarities, to attribute that to copying rather than independent creation.”
O’Brien says that comedians making the same jokes is “an occupational hazard,” and he points to a night 24 years ago when he, David Letterman and Jay Leno made the very same Dan Quayle joke. (“Dan Quayle announced today that he will not be running for president in ’96. However, he did not rule out running in ’97.”)
Twitter has made this phenomenon plain to see, with people routinely making the same jokes. “Two years ago one of our writers came up with a joke referencing Kendall Jenner’s ill-fated Pepsi commercial, and so did 111 Twitter users,” O’Brien says.
But on his show Wednesday night, O’Brien and his writers had plenty of original ideas — for lyrics to NPR’s new Morning Edition theme music.
We don’t want to steal the joke, so you should watch it for yourself.