WEBVTT - Writer Says Conan O’Brien Joke Theft No Laughing Matter (Audio)

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<v Speaker 1>Sometimes jokes can be no laughing matter. Conan O'Brien is

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<v Speaker 1>not laughing over a one million dollar lawsuit claiming he

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<v Speaker 1>stole jokes for a monologue from a professional joke writer's

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<v Speaker 1>blog and Twitter feed. O'Brien and his staff have denied

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<v Speaker 1>any theft, but a judge is rule that O'Brien will

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<v Speaker 1>have to go to trial over the allegations that he

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<v Speaker 1>and his staff stole jokes about Caitlyn Jenner, Tom Brady,

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<v Speaker 1>and the Washington Monument from Robert Alex Casberg. Our guest

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<v Speaker 1>is prominent intellectual property litigator Terence ross a partner Captain

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<v Speaker 1>Nuchen Rosamund Terry. I haven't heard much about copyright trials

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<v Speaker 1>over jokes. Are they unusual? Very unusual? June. You know,

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<v Speaker 1>the sort of uh comedy theft has been going on

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<v Speaker 1>since at least the turn of the century, during vaudeville times.

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<v Speaker 1>Wikipedia even has an entire page dedicated to joke thefts.

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<v Speaker 1>But during a period of time, say the forties, the fifties,

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<v Speaker 1>the sixties, the comedy business sort of developed a self

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<v Speaker 1>regulatory scheme. If a comedian thought that his or her

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<v Speaker 1>joke was being stolen and used by another comedian did

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<v Speaker 1>simply tell everybody in the industry that that was going on,

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<v Speaker 1>and all of a sudden, those accused joke thiefs would

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<v Speaker 1>find themselves not being booked at the nightclubs and key

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<v Speaker 1>venues around the country. Now, as stand up comedy sort

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<v Speaker 1>of expanded onto cable and became a really big money

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<v Speaker 1>maker in the eighties, we saw a resurgence of joke

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<v Speaker 1>thiefs and joke thefts, and suddenly people taking the problem

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<v Speaker 1>much more seriously. And of course it saved a lot

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<v Speaker 1>of a lot of money in court costs not to

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<v Speaker 1>have to go to court about it. But the judge

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<v Speaker 1>in this case said the jokes were entitled to thin

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<v Speaker 1>copyright protection. What does that mean, Well, we have a

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<v Speaker 1>as part of our copyright system, this this concept that

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<v Speaker 1>UH certain expressions facts, you know, the sun rises in

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<v Speaker 1>the east, for example, UM, cannot be copyrighted or they

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<v Speaker 1>have very thin copyright protection so that you have to

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<v Speaker 1>take the exact expression of the idea. And so the

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<v Speaker 1>judge was suggesting UM in her decision allowing this case

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<v Speaker 1>to go to trial against uh Conan, that UM the

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<v Speaker 1>jokes had to really be very close to each other,

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<v Speaker 1>that the joke be as written by the plaintiff and

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<v Speaker 1>then as used on the television show Conan had to

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<v Speaker 1>be virtually identical or at least so close that people

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<v Speaker 1>couldn't be confused as to the source. And that's what

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<v Speaker 1>she meant by the judge meant by thin copyright protection.

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<v Speaker 1>So she allowed three of the jokes to go to trial,

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<v Speaker 1>and she threw two of them out. And I have

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<v Speaker 1>to say that these are very they're like almost they're

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<v Speaker 1>like two liner jokes. They're not you know, long and

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<v Speaker 1>involved jokes. So, um, why did she decide to allow

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<v Speaker 1>to throw two of them out? Well, at least one case,

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<v Speaker 1>there was electronic evidence that the staff writer at the

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<v Speaker 1>Conan show UM may have actually written the joke that

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<v Speaker 1>was used on the television show before it would have

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<v Speaker 1>been possible for the staff writer to access it on

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<v Speaker 1>the Internet from the plaintiff. And that's the great thing

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<v Speaker 1>about um E communications nowadays is that you often have

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<v Speaker 1>a lot of evidence that wasn't previously available as to

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<v Speaker 1>exactly when certain jokes were written or got propagated onto

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<v Speaker 1>out there, and so you can match up whether not

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<v Speaker 1>a particular joke was taken after it was written or

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<v Speaker 1>whether it was independently created prior to the plaintiff putting

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<v Speaker 1>it out there for the rest of the world. So Terry,

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<v Speaker 1>doesn't that show that the jokes can be similar enough,

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<v Speaker 1>especially since they don't have to be identical, that two

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<v Speaker 1>people can come to the same joke. Absolutely, and the

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<v Speaker 1>law recognizes the concept of independent creation, that two different

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<v Speaker 1>people can come up with the uh same or similar

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<v Speaker 1>expressions of an idea, because that's what this is all about.

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<v Speaker 1>It's not the idea of a specific joke that is copyrightable,

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<v Speaker 1>it's how you express the joke. Now. The one thing

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<v Speaker 1>the court did not consider here, and I thought they would,

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<v Speaker 1>is that a doctor and copyright law known as the

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<v Speaker 1>merger doctrine, which says that sometimes an idea has so

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<v Speaker 1>few ways of being expressed that it can't be copyright

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<v Speaker 1>in the first place. The chicken crossing the road jokes

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<v Speaker 1>UM sort of fit into that category. And for a

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<v Speaker 1>couple of these jokes, particularly Tom Brady joke, I would

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<v Speaker 1>have thought that um, the court would have held that

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<v Speaker 1>there were so few ways of expressing UM this particular

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<v Speaker 1>joke that it shouldn't have been copyrighted in the first place.

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<v Speaker 1>And there was also, uh, the Washington Monuments shrinkage joke,

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<v Speaker 1>and that's actually based on a famous joke that was

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<v Speaker 1>used in the Seinfeld show so many times it seems

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<v Speaker 1>like both of them were taking it from that place.

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<v Speaker 1>So um, now, how do you he wants, at least

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<v Speaker 1>initially sued for a million dollars? How can a few

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<v Speaker 1>jokes be worth that much? I think that's going to

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<v Speaker 1>be a very hard number to prove up. Um, he

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<v Speaker 1>will have to argue that when he writes these jokes

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<v Speaker 1>and sells them to comedians, and that's his job, his profession.

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<v Speaker 1>He has his jokes have been on Jay Leno's show

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<v Speaker 1>apparently over a thousand times, that he makes money that way,

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<v Speaker 1>that he charges a certain amount for each joke. And

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<v Speaker 1>he'll have to show that these three jokes he would

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<v Speaker 1>have charged but for the fact they were stolen by

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<v Speaker 1>allegedly stolen by, that he would have charged million dollars.

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<v Speaker 1>I think that's impossible to prove. I think what's more

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<v Speaker 1>likely is that the plaintiff will rely upon UH Section

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<v Speaker 1>file of four of the copyright law, which says, if

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<v Speaker 1>you can't prove up the exact value of a copyright

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<v Speaker 1>at work, you can claim what's done as statutory damages,

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<v Speaker 1>and for those you can get up to a hundred

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<v Speaker 1>and fifty thousand dollars per copyright at work. So here

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<v Speaker 1>there were three jokes, three copyright at works. Um, it

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<v Speaker 1>seems to me that the most he could collect is

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<v Speaker 1>the UH four and fifty thou dollars. This seems to

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<v Speaker 1>me like a trial where there should be a settlement

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<v Speaker 1>before trial begins. But I don't know that Conan O'Brien

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<v Speaker 1>would want to make any admission by settling. I think

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<v Speaker 1>that's what that's the problem with the sort of lawsuit.

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<v Speaker 1>The damage is really done when you file the lawsuit

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<v Speaker 1>and accuse someone of stealing your jokes. UH. To this day,

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<v Speaker 1>within the comedy business, that is a real black mark

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<v Speaker 1>against you, even though many famous comedians of the years

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<v Speaker 1>have been accused of doing it. It is a black mark,

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<v Speaker 1>and you you almost force the defendant Conan in this instance,

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<v Speaker 1>to go into court to defend themselves to clear their name,

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<v Speaker 1>which makes a settlement very challenging. And Conan O'Brien said

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<v Speaker 1>he was just devastated when he heard about this lawsuit.

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<v Speaker 1>It's always interesting to talk to you, Terry. You have

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<v Speaker 1>all the facts and all the behind the scenes information.

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<v Speaker 1>Thanks so much for being on Bloomberg Law. That's Terence

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<v Speaker 1>ross a partner Captain Muchen Rosenman. That's it for this

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<v Speaker 1>edition of Bloomberg Globe. We're back tomorrow one pm thanks

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<v Speaker 1>to our technical director Reginald Bazil and our producer David Suckerman.

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<v Speaker 1>And Carol Master is here. Carol, very quickly, what's your

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<v Speaker 1>big topic today? All right, we're gonna continue following the

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<v Speaker 1>president in the market reaction. We're going to start there June.

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<v Speaker 1>You'll start there and and I'm sure you're going to

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<v Speaker 1>start there almost every day for a few days to come.

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<v Speaker 1>All Right, this is Bloomberg, Carol Master and Corey Johnson

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<v Speaker 1>coming up next