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How is the ownership of a joke decided? When does joke theft become illegal? These are all questions people are wondering after comedy writer Robert Alexander Kaseberg sued Conan O’ Brien for stealing his jokes.

Kaseburg claims that Conan stole four jokes from his personal blog and Twitter. This includes the writer’s specific joke about two passengers wrestling for an armrest, which appeared in Conan’s monologue later that same night. Conan’s production company says there’s no merit to the lawsuit. While this seems like a silly feud between two writers, it brings up not only the issue of joke theft, but the regulations on social media copyright infringement.

This debate raises an interesting question: What are the intellectual property rights of a joke? While there will undoubtedly be factual disputes as to the accusations in the complaint, the potential for a court decision to shape jurisprudence on the forever debated topic of “joke-stealing” is a thought-provoking prospect.

How Twitter Copyright Infringement Plays a Role

In reality, joke theft happens. But, to prove a joke was stolen from a social media platform is not always realistic. There is little case law directly focusing copyright infringement of jokes, and ones stolen from social media. This casual system has likely been effective since comedians often incorporate jokes from other comedians into their own routines. In the digital age, this has only become a bigger issue as jokes and funny stories get passed about Twitter, Facebook and Youtube in the blink of an eye. The onslaught of information, often without citation, makes social media the wild west of copyright law.

Since most jokes are not fixed in a tangible medium of expression (spoken instead of written)  – protection of a joke is much more difficult to get and prove if stolen. But, because the writer posted his jokes to his Twitter, that argument is not available to Conan in this particular case.

Although, it is still unclear whether jokes like this, are copyrightable at all. Even if the writer’s Twitter jokes are original, he may still have trouble sustaining the legal standard for creativity. He would have to prove the jokes are creative and original and not just ideas being repeated. And even if his jokes are found to be copyrightable, he will still have to prove that Conan stole them. The two-part test of actionable copying is known as (i) access and (ii) substantial similarity.
Conan can still raise a defense of fair use. This involves considering four factors – the purpose of the use; the nature of the copyrighted work (the jokes); portion of the work used in relation to the work as a whole; and the effect of the use of the stolen material on the potential market for the value of the original.

So, given the thin case law, it is difficult to calculate how cases like this are decided. The writer is climbing an uphill battle. This case decision could shed light on copyright protection for jokes in the future. We will see what the California federal court have to say on the matter.

In the meantime, what are your thoughts on the case and copyrighted jokes?