The Internet has replaced many things in people’s lives. But is your favorite comedy routine one of them?
News broke Tuesday that Conan O’Brien, comedian and host of late-night talk show “Conan” on TBS, was being sued by a San Diego man claiming he had ripped off a few his jokes. And how would he have found them? Well with Twitter, witty, timely one-liners are more accessible—and more in danger—than ever. Even still, it’s not a slam-dunk for copyright infringement.
Joke theft has a history that extends far beyond the Twitter timeline, but with the advent of social media and cross-posting it’s become more and more common. Many humor writers use Twitter to test out material or make quips about recent events that are very similar to what you’d see in a late-night talk show. There’s even a common practice of accounts (sometimes bots) copy and pasting popular tweets to boost their own following.
That seemed to be what was happening to Olga Lexell, a comedian who uses Twitter to test out her material. After seeing her tweet being copied across the site, Lexell reached out to Twitter for action—and to the surprise of many, they responded by removing the offending tweets.
“I simply explained to Twitter that as a freelance writer I make my living writing jokes (and I use some of my tweets to test out jokes in my other writing),” Lexell told The Verge. “I then explained that as such, the jokes are my intellectual property, and that the users in question did not have my permission to repost them without giving me credit.”
Here, like any site that hosts content generated by its users, Twitter is drawing a clear (albeit rare to see), DMCA line in the sand regarding its tweets: They are intellectual property, and violators will be punished. But Lexell’s case is much more straightforward than that of Robert “Alex” Kaseberg, who according to the suit claims that four jokes he tweeted out appeared (allegedly sometimes word-for-word) in the opening monologue of O’Brien’s show the following day.
In the case of comedians ripping off of other comedians (or just funny bits from the Internet) there’s a long history of people getting caught. But there’s an equally long history of the jokes being similar based purely on their core ideas. Such is the ephemeral quality of comedy—and stand-up in particular. And as Karen Brennan of Duets Blog noted in a post about “Twilight” fans who cry copyright infringement, core ideas aren’t protectable:
So, who is infringing, if anyone? Each of these vampire stories shares a common theme or idea – a young, human girl falls in love with a vampire – but is this copyright infringement? Unlikely. Copyright protects original works of authorship. However, copyright protection does not cover the underlying idea, but only the specific expression of that idea. Proving copyright infringement requires a substantial similarity between the works (i.e., the words used to express the idea in the case of a book).
Following this logic, it’s not impossible that Kaseberg has a case. Given that many of his jokes were allegedly repeated word-for-word by O’Brien, it’s possible that someone involved in the production of “Conan” saw Kaseberg’s Twitter feed and started mining it for jokes in some way. But like David Sims writes for The Atlantic, you’ll want to make very sure:
Saturday Night Live once featured a parody of Brett Favre’s Wrangler jeans commercials after his sexting scandal; people pointed out other comedians had made the same joke online. Sure—because it was the most obvious thing to do. Aiming for the lowest common denominator doesn’t equal plagiarism. Still, complaints about theft of someone’s premise remain a frequent issue in the comedy scene. As Splitsider’s Adam Frucci once noted, if you want to accuse someone of stealing your joke, make sure it wasn’t only highly original, but also highly similar, and visible enough that someone famous might have seen or heard it.
It’s a principle intellectual property lawyers have been espousing for years. After all, no one wants to end up the butt of the joke.