Copyright is No Joke

by Goeun Son

Setting aside the fact that I love Conan O’Brien’s sense of humor, let me try to see this issue with my legal perspective. Back in 2015, Tom Brady, a football quarterback for the New England Patriots, handed his 2015 Super Bowl MVP trophy over to the coach of the opposite team, the Seattle Seahawks. What Brady did produced jokes in Conan O’Brien’s late night show. He said: “Tom Brady said he wants to give the truck that he was given as Super Bowl MVP . . . to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that’s nice. I do. Yes. So Brady’s giving his truck to Seahawks coach Pete Carroll.”

But that didn’t sound jokes to, at least, one person. Alex Kaseberg, Freelance writer, sued O’Brien for copyright infringement of his jokes, arguing that Kaseberg put a substantially similar joke on his blog and Twitter the day before O’Brien delivered it. Kaseberg posted: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”

But in 2017, the U.S. District Court said that Kaseberg’s jokes were entitled to only “thin” protection and he would need to show that O’Brien’s jokes were virtually identical, instead of substantially similar, in order to prevail. Whether copyright is “thin” or “strong” depends on the nature of a work. Here, jokes at issue started with some facts such as Brady giving his trophy to the other team. As you learned, facts are not copyrightable. Although punchlines were creative works, the entire jokes could not be protected under “strong” copyright because of the factual elements. That is why Kaseberg was required to prove something more than substantial similarity.

However, as the U.S. Copyright Office reconsidered the rejection of Kaseberg’s copyright for the Brady joke, O’Brien argued that Kaseberg had misled the feds by implying the court had ruled the joke merited copyright protection.

The court on Thursday dismissed two of O’Brien’s affirmative defenses (meaning even though there was an infringement, I am off the hook under, for example, fair use), one arguing that Kaseberg had committed fraud on the copyright office and the other that he isn’t entitled to relief because he withheld relevant documents during a pre-trial process and has “unclean hands.” (meaning because plaintiff was acting unethically). But the court concluded that there was no intent to defraud because Kaseberg’s counsel undeniably attached a copy of the Court’s full Order to the letter to the Office. Also, because the court found Kaseberg’s actions don’t rise to the level of fraud, unclean hands defense was dismissed.

I agree with the court’s decision about affirmative defenses. Putting myself in O’Brien’s shoes, because stealing others’ jokes are a huge disgrace to a comedian, he must have wanted to get out of it so bad by bringing affirmative defenses. But as the court indicated, I think supporting reasons or evidence (e.g. withholding relevant documents) was too weak to find for O’Brien considering Kaseberg’s another act of submitting the whole court document.

When it comes to the copyright infringement claim, because the originality standard is pretty low, Kaseberg’s jokes can be copyrightable based on his punchline and comment. At the same time, some facts cited in his jokes (“Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots”) made the copyright “weak.” If I were Kaseberg, I would’ve probably complained about the higher bar to prove the infringement. Unless alleged infringers are not smart, they would not copy every line verbatim. Also, O’Brien’s jokes were made during his monologue. In other words, it was a verbal, stand-up comedy, while Kaseberg wrote and uploaded it on his website and blog.

How about the evidence of access to Kaseberg’s work? It was posted online, so everyone gets access to it, and O’Brien’s show was broadcast the day after Kaseberg’s jokes were posted. True, the Super Bowl is one of the biggest events and draws everyone’s attention. But I got more interested when Kasebrg argued that this was not the first time O’Brien allegedly copied his jokes related to a Delta flight and the Washington Monument. Again, O’Brien made similar jokes not long after his posts. I think the court could consider the totality of a circumstance and be more flexible with applying rules. As it seems there is circumstantial evidence that O’Brien could get access to the work along with other alleged similar jokes and a difficulty to prove virtually identical jokes, I think the court could be less harsh on proving copying.

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