Conan O’Brien is being sued by comedy writer Alex Kaseberg, who alleges that Conan copied into Mr. O’Brien’s monologues jokes Mr. Kaseberg had posted on Twitter. Mr. Kaseberg sued, along with Mr. O’Brien, the production company for Conan, Time Warner Inc., the executive producer of Conan, its head writer, and other participants in Mr. O’Brien’s joke writing team.
To get the jokes–so to speak–click on the complaint.
One principle of copyright law this lawsuit highlights is that posting something on Twitter does not mean that the content of that post is in the “public domain” and free to copy. Under Twitter’s Terms of Service, if you post content to Twitter, you do indeed give Twitter a license to the content post on Twitter, and you understand that you give permission to other Twitter users to retweet that content. But that’s a far cry from expecting to see your content appear on a national TV show.
The second principle of copyright law? To show copyright infringement, it is insufficient that the expressive works are substantially similar. Yes, the copyright holder must show that the commercial broadcast use is substantially similar to the copyrighted work, but the copyright holder also must show a second element: that the infringer had “access” to the copyrighted work. In late-night joke writing, teams of writers are all focusing on the same news events, and those separate teams may independently happen to land on similar jokes.
Though most people may not think of a Tweet as a “literary work”, there is no requirement of length or artsy-fartsy merit in order for copyright protection to apply. The complaint alleges the jokes were posted on the Plaintiff’s Twitter feed on January 14, February 3, February 17, and June 9, and that these 4 jokes were broadcast on Conan on January 14, February 4, February 17, and June 9. If the plaintiff does show substantial similarity between the jokes, the repetition of landing on the 4 similar jokes within 6 months will make it difficult for Conan’s attorneys to convince anyone that the Conan team was not reading the @AlexKaseberg Twitter feed. That would show access.
The third principle of copyright law is that there is no need to register a copyrighted work in order to enjoy copyright protection. Copyright protection attaches automatically once the work is “fixed in a tangible medium of expression”. The Plaintiff is a freelance jokewriter who had worked for Leno for 20 years. He applied for copyright protection to the United States Copyright Office on March 10, March 11, June 26, and July 8, in each case well after Conan had aired similar jokes.
How much is a joke for national commercial television broadcast possibly worth? For allegedly taking the 4 jokes, Mr. Kaseberg is seeking $600,000+, damages for willful infringement, and attorneys’ fees and costs. This suggests that the going rate for a joke for a late night television show is ~$150,000 per joke, at least, for a late-night show with tired format, now on TBS.
Nothing about this lawsuit really breaks new ground in copyright law. That said, regardless of how Mr. O’Brien sources his jokes, many will find one aspect of this lawsuit totally surprising: that, after being passed over by the bigger networks, the rarely-amusing Conan O’Brien is somehow still on late-night on TBS.