Stop Me If You’ve Heard This One… Joke Stealing and Copyright

Stephen Carlisle July 30, 2015

Two recent events cast a spotlight on the not-so–funny business of joke stealing. In the first few weeks of July, Twitter received DMCA takedown notices from freelance writer Olga Lexall, who objected the re-tweeting of her jokes without attribution. ¹ Twitter, in turn, removed the re-tweeted jokes and replaced them with a notification that the material had been removed due to a “report from the copyright holder.” ²

Actual lawsuits between comedians are so rare as to be unheard of. Yet, on July 22, 2015, an actual copyright infringement lawsuit over jokes was filed by Robert “Alex” Kaseberg, against Conan O’Brien and his production company. ³ Kaseberg claims that on four different occasions after posting jokes on his personal blog and Twitter account, the nearly identical jokes were delivered by Conan O’Brien on his television show, sometimes in less than a day than they first appeared. ⁴ Kaseberg claims to have been a writer for the “Tonight Show” for over 20 years. ⁵ In response to the suit, the Conan O’Brien parties issued the standard denial of “there is no merit to this lawsuit.” ⁶

Joke stealing is considered a serious offence within the stand-up comedy community. Yet, comedians as notable as Robin Williams, Dennis Leary, Dane Cook, Carlos Mencia, ⁷ Jay Leno, ⁸ and the TV show South Park ⁹ have all been accused of joke stealing. Milton Berle was accused of joke stealing so many times that many comedians referred to him as “The Thief of Bad Gag.” ¹⁰

There is an unspoken understanding amongst comedians about who owns a joke.

“If two comics come up with a similar joke, for example, it’s understood that whoever tells it first on television can claim ownership. Similarly, if two comedians are working on material together, batting ideas back and forth, it’s generally agreed upon that if one comedian comes up with a setup and the other the punch line, the former owns the joke.” ¹¹

And of course, there are some instances of self-help in combatting joke stealers. W.C. Fields is said to have paid $50 to break the legs of a comedian who stole his jokes. ¹²

“According to Richard Zoglin’s book, Comedy at the Edge, David Brenner once asked [Robin] Williams’ agent to ‘Tell Robin if he ever takes one more line from me, I’ll rip his leg off and shove it up his [bleep]!’ Williams has playfully referred to the practice as ‘joke sampling.’” ¹³

In 2007, there was a rather ugly confrontation between Joe Rogan and Carlos Mencia while the latter was onstage performing a show at the Comedy Store in Hollywood California. ¹⁴

One comedian [was of the opinion], “… the only copyright protection you have is a quick uppercut.” ¹⁵

Will copyright protect a joke? The Copyright Office seems to think so, with limitations.

“Compendium II of Copyright Office Practices § 420.02 states: ‘Jokes and other comedy routines may be registered if they contain at least a certain minimum amount of original expression in tangible form. Short quips and slang expressions consisting of no more than short expressions are not registrable.’ In other words, jokes are to be considered under the ordinary originality standard applied to all other material.” ¹⁶

Since, as noted above, the Copyright Office will refuse to register short phrases, “one-liner” jokes such as Henny Youngman’s famous quip “Take my wife…please” might be in danger of being refused copyright registration.

One must also consider the fixation problem. If the joke has only been delivered in a live stand-up comedy show, then the joke fails the requirement on fixation. If that joke gets stolen, there might be recourse through common law misappropriation (or a quick uppercut), but not copyright infringement.

Then, there is the originality problem. Your joke might be original, or it might be that you have just forgotten where you heard it first.

“In a lengthy essay on joke stealing, Patton Oswalt admitted to having done this early in his career: ‘I stole a joke. Not consciously. I heard something I found hilarious, mis-remembered it as an inspiration of my own, and then said it onstage.’” ¹⁷

And finally, there is the doctrine of independent creation. Two comedians could come up with the same joke independently, as Bill Maher found out.

“Nothing shuts down an accusation of joke theft faster or in a more embarrassing way than proof that the accuser actually made the joke after the accused. That’s what happened to Bill Maher, who accused The Onion of stealing a joke he made in a standup special. The problem? The Onion published the joke in question six months before his standup special aired. He had just seen it brought back from the archives on the front page and assumed it was new.” ¹⁸

Or, there’s this very blog post. After I had written about half of it, I did a little more research, only to find an article on the same topic using nearly the same headline that I had already picked out. ¹⁹

So, let’s go back to the Conan O’Brien lawsuit.

Kaseberg claims that his jokes went out as posting on his personal blog and as tweets on his Twitter account. ²⁰ That seems to have solved the fixation problem, but there is a complicating factor: Twitter automatically deletes tweets after about one and a half weeks, making them unsearchable in the Twitter database. ²¹ So, while the several months old tweets by Kaseberg will remain in his Twitter stream, there will be no way to independently verify them from the defense side of the table.

A further complicating factor is that Kaseberg has only filed for registration, but not received the actual registrations back. ²² As stated above, assuming that the Copyright Office will actually grant registration to the jokes is not a foregone conclusion.

But, ultimately the case will turn on the question of access, and whether the jokes are so substantially similar that Kaseberg’s public dissemination of the jokes by Twitter and his personal blog is sufficient to assume access by Conan O’Brien and his writing staff.

And, in the meantime, the amount of attorneys’ fees expended in this case will be no laughing matter.