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

and the Washington Monument from Robert Alex Casberg. Our guest is prominent intellectual property litigator Terence ross a partner Captain Nuchen Rosamund Terry. I haven't heard much about copyright trials over jokes. Are they unusual? Very unusual? June. You know, the sort of uh comedy theft has been going on since at least the turn of the century, during vaudeville times. Wikipedia even has an entire page dedicated to joke thefts.

But during a period of time, say the forties, the fifties, the sixties, the comedy business sort of developed a self regulatory scheme. If a comedian thought that his or her joke was being stolen and used by another comedian did simply tell everybody in the industry that that was going on, and all of a sudden, those accused joke thiefs would find themselves not being booked at the nightclubs and key

venues around the country. Now, as stand up comedy sort of expanded onto cable and became a really big money maker in the eighties, we saw a resurgence of joke thiefs and joke thefts, and suddenly people taking the problem much more seriously. And of course it saved a lot of a lot of money in court costs not to have to go to court about it. But the judge in this case said the jokes were entitled to thin

copyright protection. What does that mean, Well, we have a as part of our copyright system, this this concept that UH certain expressions facts, you know, the sun rises in the east, for example, UM, cannot be copyrighted or they have very thin copyright protection so that you have to

take the exact expression of the idea. And so the judge was suggesting UM in her decision allowing this case to go to trial against uh Conan, that UM the jokes had to really be very close to each other, that the joke be as written by the plaintiff and then as used on the television show Conan had to be virtually identical or at least so close that people couldn't be confused as to the source. And that's what she meant by the judge meant by thin copyright protection.

So she allowed three of the jokes to go to trial, and she threw two of them out. And I have to say that these are very they're like almost they're like two liner jokes. They're not you know, long and involved jokes. So, um, why did she decide to allow

to throw two of them out? Well, at least one case, there was electronic evidence that the staff writer at the Conan show UM may have actually written the joke that was used on the television show before it would have been possible for the staff writer to access it on

the Internet from the plaintiff. And that's the great thing about um E communications nowadays is that you often have a lot of evidence that wasn't previously available as to exactly when certain jokes were written or got propagated onto out there, and so you can match up whether not a particular joke was taken after it was written or whether it was independently created prior to the plaintiff putting

it out there for the rest of the world. So Terry, doesn't that show that the jokes can be similar enough, especially since they don't have to be identical, that two people can come to the same joke. Absolutely, and the law recognizes the concept of independent creation, that two different people can come up with the uh same or similar expressions of an idea, because that's what this is all about. It's not the idea of a specific joke that is copyrightable,

it's how you express the joke. Now. The one thing the court did not consider here, and I thought they would, is that a doctor and copyright law known as the merger doctrine, which says that sometimes an idea has so few ways of being expressed that it can't be copyright in the first place. The chicken crossing the road jokes

UM sort of fit into that category. And for a couple of these jokes, particularly Tom Brady joke, I would have thought that um, the court would have held that there were so few ways of expressing UM this particular joke that it shouldn't have been copyrighted in the first place. And there was also, uh, the Washington Monuments shrinkage joke, and that's actually based on a famous joke that was used in the Seinfeld show so many times it seems like both of them were taking it from that place.

So um, now, how do you he wants, at least initially sued for a million dollars? How can a few jokes be worth that much? I think that's going to be a very hard number to prove up. Um, he will have to argue that when he writes these jokes and sells them to comedians, and that's his job, his profession. He has his jokes have been on Jay Leno's show apparently over a thousand times, that he makes money that way,

that he charges a certain amount for each joke. And he'll have to show that these three jokes he would have charged but for the fact they were stolen by allegedly stolen by, that he would have charged million dollars.

I think that's impossible to prove. I think what's more likely is that the plaintiff will rely upon UH Section file of four of the copyright law, which says, if you can't prove up the exact value of a copyright at work, you can claim what's done as statutory damages, and for those you can get up to a hundred and fifty thousand dollars per copyright at work. So here there were three jokes, three copyright at works. Um, it seems to me that the most he could collect is

the UH four and fifty thou dollars. This seems to me like a trial where there should be a settlement before trial begins. But I don't know that Conan O'Brien would want to make any admission by settling. I think that's what that's the problem with the sort of lawsuit. The damage is really done when you file the lawsuit and accuse someone of stealing your jokes. UH. To this day, within the comedy business, that is a real black mark against you, even though many famous comedians of the years

have been accused of doing it. It is a black mark, and you you almost force the defendant Conan in this instance, to go into court to defend themselves to clear their name, which makes a settlement very challenging. And Conan O'Brien said he was just devastated when he heard about this lawsuit. It's always interesting to talk to you, Terry. You have all the facts and all the behind the scenes information. Thanks so much for being on Bloomberg Law. That's Terence

ross a partner Captain Muchen Rosenman. That's it for this edition of Bloomberg Globe. We're back tomorrow one pm thanks to our technical director Reginald Bazil and our producer David Suckerman. And Carol Master is here. Carol, very quickly, what's your big topic today? All right, we're gonna continue following the president in the market reaction. We're going to start there June. You'll start there and and I'm sure you're going to start there almost every day for a few days to come.

All Right, this is Bloomberg, Carol Master and Corey Johnson coming up next