Conan O'Brien Going To Court Over Accusations Of Joke Theft; Let's Talk About Joke Stealing

NY Times- A federal judge has ruled that the late-night host Conan O’Brien must head to court to face allegations of joke theft, a rarity in comedy, where accusations often fly but rarely advance past that.

The plaintiff, Alex Kaseberg, claimed in a lawsuit filed in July 2015 that writers from “Conan,” on the cable channel TBS, lifted five monologue jokes from his blog over the course of more than a year. Mr. O’Brien’s team filed for summary judgment for the case in the United States District Court for the Southern District of California. Judge Janis Sammartino on Friday dismissed the claims for two of the jokes, but said Mr. O’Brien must face the allegations for the other three.

Among the examples Mr. Kaseberg cited: On Dec. 2, 2014, Mr. Kaseberg wrote, “The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said, ‘Wait, so you can do that?’” The next day on “Conan,” Mr. O’Brien said during his monologue: “Big news in sports. University of Alabama-Birmingham has decided to discontinue its football team. Yeah. When they heard the news, New York Jets fans said, ‘Wait you can do that? It’s something you can do?’”

Joke-theft is a really tricky topic. I’ve been performing standup for 6 years now and while I humbly know that few comics would benefit from stealing my shitty jokes, I would say that stealing jokes, or having your jokes stolen, is the single most sensitive issue for comics. Your jokes are your livelihood; many take years to craft. When you hear another comic performing a joke similar to yours (sometimes repeated verbatim), it can feel like assault. We’ve seen lots of incidents of comics accusing other comics of stealing jokes. Dane Cook ripping off Louis CK, Carlos Mencia taking from Cosby (and others), and of course, the recent meteoric rise of Amy Schumer has come on the heels of multiple accusations of joke appropriation from comics like Patrice O’neal.

The internet has taken the liberty to splice together some videos that show pretty compelling evidence that these comics stole from other comics. It’s hard to argue with these compilations, or the Conan joke about football. Sometimes the similarity is just too strong, and when you can place the stealer in the same room as the original teller, it’s obvious that they stole the joke.

Having said that, there’s a lot of grey area when it comes to comedic inspiration. The line between “inspired by,” borrowing from, and stealing can be tough to draw. There are millions of comedians out there now. The vast majority suck, but there are thousands who are pretty damn good that no one has ever heard of. Maybe they’re opening on a show that features one of the big names, and maybe that big name is standing in the wings, half-listening to their set. Without realizing it, “inspiration” can strike. Next thing you know, a joke you worked on for years is being told in eerily similar fashion by a huge name on an HBO special. This is how Louis characterized the Dane Cook incident: “I think he sort of got some of my jokes in his head and got sloppy.” It would be crazy for a comic as visible as Dane Cook to blatantly and intentionally steal jokes from someone as big as Louis and expect to get away with it.

So that’s the “inspiration” theory. But there’s also the “parallel thinking” concept. This idea acknowledges that comics all talk about the same shit: dating, traveling on airplanes, sex, dogs, working out, eating… we’ve mined these fields a thousand times over. Given how saturated the comedic landscape is with these topics, it’s almost impossible to write an airport security joke that hasn’t been told before. That’s why it’s so hard to stand out these days, to make your set seem truly original. It’s also why the best piece of advice you’ll ever hear in standup is to be honest, to tell stories truthfully, from your own life. Because nobody can really accuse you of stealing a joke if you’re recounting something that actually happened to you. With observational humor, it’s harder.

When I was first starting out, I did a bunch of hacky jokes about the struggles of having red hair. I would compare the difficulties of being a ginger to the oppression that black people have faced for hundreds of years. It was all pretty dumb, but the big punchline revolved around the fact that “Ginger” is an anagram for the N word (same exact letters, rearranged). I would say “hopefully someday, after our own civil rights movement, we’ll be the only ones who can say ginger. But instead, we’ll call each other ginga. Ginga please!” It was a decent discovery and it would typically do pretty well. However, after like 3 months of doing this joke, another comic told me to watch a bit by the terrific Australian musical-comic Tim Minchin. He’d written an ENTIRE SONG called “Prejudice” which used the EXACT SAME concept– that Ginger and the N word were anagrams.

I had to drop the joke. Anyone who’d seen the Minchin bit would automatically assume I’d just stolen my bit from him because he was famous and I wasn’t (also, his version was just so much better than mine). Even though I’d come up with the bit completely organically, I had to ditch it. I was devastated, but it was a great lesson that underscored the importance of constantly updating your act, of continuing to write every day. The more you invent, the easier it is to replace jokes in your act that have grown stale or seem derivative. By continually updating your set, taking out your weakest joke and replacing with a new one, you can present a fresh, original set each night. Louis goes even farther, following the Carlin model of throwing out your act entirely at the end of each year and starting completely fresh.

Nobody wants to be accused of stealing jokes. I believe, perhaps naively, that comics rarely steal jokes with (as Louis put it) maleficent intent. For the most part, similarities can result from laziness or sloppiness. The flip side is that comics who remain truly original, who pioneer comedic concepts, whose sets you hear and think “holy cow, I’ve never thought of it that way”–these comedians are artists. Of this caliber, Gary Gulman comes to mind. I once watched him do 15 minutes about FONT. Yes, Font. Like times new roman, comic sans… lettering. And it was one of the best sets I’ve ever seen. Do yourself a favor and catch him the next time he’s at the Comedy Cellar.