Comedian claims Conan O’Brien co-opted his quips

| May 22, 2017 | Copyright Law

Alex K. has been a comedy writer for at least 20 years. Jay Leno has used thousands of his jokes. You may not have heard Alex’s name, but he’s still in the game. He blogs about humor and sometimes posts dozens of pithy, topical jokes at a time.

It might be tempting for a less-successful comedian to steal some of those jokes. But would it be tempting for writers on a hit comedy show?

That’s the question before a federal court after Alex accused the writers of “Conan” of co-opting at least five dumb jokes from his blog.

When addressing a complaint, courtesy could be key

As an aside, this case brings up an interesting tip for avoiding litigation generally. When someone comes to you with a complaint, you aren’t required to deny everything and chase the complainer away with insults. It might seem like an effective tactic for deflecting litigation, but it could easily backfire.

In this case, Alex first Tweeted his complaint and then brought it directly to the head writer of “Conan.” “I’m not upset,” his Tweet read in part, “[but] would like the opportunity to contribute jokes.”

O’Brien’s head writer was not diplomatic in return. According to the lawsuit, the head man “angrily and loudly denied those were my jokes. He was furious that I was accusing him of stealing jokes, but most of all he was incensed that I would suggest his writers would have anything to do with my pathetic blog and [its] author, me, a no-name failure.”

That may be the underlying reason behind this unusual lawsuit.

“The most surprising thing to me about this lawsuit is that it was filed in the first place,” says a law professor interviewed about the case. He points out that it’s fairly difficult to prove one joke infringes on another. They’re also “fairly low-dollar-value” work, so most people won’t bother with a lawsuit.

What would the writer have to show to win an infringement suit?

A federal judge reviewed the claims preliminarily and found that three of the “Conan” jokes were “sufficiently objectively virtually identical” to ones that had appeared on Alex’s blog before the shows aired. That’s enough to move the lawsuit forward, but not enough to win.

In order to do that, Alex will have to show that O’Brien and/or his writers “willfully infringed” on his copyrights, as opposed to writing very similar jokes coincidentally. That’s because jokes only get “thin” protection under copyright law — many of their elements are simply unprotectable by copyright law.

“Similarities derived from the use of common ideas cannot be protected,” wrote the judge. “Otherwise, the first to come up with an idea will corner the market.”