Conan O’Brien will go to trial over comic creativity and joke theft after losing an effort to toss out the copyright suit.

CONAN O’BRIEN BEING SUED FOR ALLEGED JOKE THEFT

Robert Alexander Kaseberg is suing the late night host for stealing his jokes. Kaseberg claims he posted several jokes online that O’Brien used later that day or on the next episode of his show Conan on TBS.

O’Brien attempted to get the suit tossed out, but a San Diego judge allowed it to continue. “The laughter stopped in late 2014 and early 2015, at least for a spell, when [Kaseberg] began to notice similarities between his posts and several of the jokes used in the late-night television show Conan‘s monologues,” said US District Judge Janis Sammartino.

Kaseberg is a comedy writer whose work has been published in various publications, and more than 1,000 of his jokes told by Conan rival Jay Leno. “This is a victory for comedy writers, especially lesser known writers,” Kaseberg’s attorney Jayson Lorenzo said. “Their works are protected, and you can’t use someone else’s material, no matter who you are, without facing liability.”

The judge dismissed two of the five allegations, but allowed the lawsuit to go forward on three of the jokes, saying the law provides “thin copyright protection” on them.

For example, one of Kaseberg’s jokes was about the New England Patriots’ 2015 Super Bowl win over the Seattle Seahawks. The next day, O’Brien’s monologue included a similar setup and punchline. “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,” the host said. “So Brady’s giving his truck to Seahawks coach Pete Carroll.”

The two have also made similar jokes about the Washington Monument being 10 inches shorter than believed, citing cold weather and “shrinkage.”

Generally, it is very difficult to prove that one comic stole a joke from another comic, and it is easy for the big names to get away with such theft. Digital time stamps, however, help the little guys. In the lawsuit, attorneys compared the date on Kaseberg’s tweets and blog posts with the timing of O’Brien’s monologues and emails.

The lawsuit names O’Brien, Turner Broadcasting System, Time Warner, Inc., and the executive producer and head writer of the show, all of which have denied the claims.

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