April 23, 2019 / 9:01 PM / a year ago

Breakingviews - Holding: Comic sues, but joke’s on copyright law

NEW YORK (Reuters Breakingviews) - Did you hear the one about the comedy writer who’s suing U.S. talk-show host Conan O’Brien for allegedly stealing his jokes? It’s the latest case of creative types – from UK band Radiohead to software giant Oracle – using copyright protections to block others from building on their clever but often derivative ideas. Overly strict laws that stifle innovation are no laughing matter.

Comedian Conan O'Brien smashes a gavel as he speaks during the White House Correspondents Association Dinner in Washington April 27, 2013. REUTERS/Kevin Lamarque

Freelance writer Robert “Alex” Kaseberg had been contributing jokes to Jay Leno and other comics for years when, in February 2015, he heard O’Brien tell this one: “It turns out the Washington Monument is 10 inches shorter than previously thought. You know it has been a cold winter when even a monument has shrinkage.” Pretty funny, he thought, before realizing that he had posted an almost identical crack on his blog six hours earlier. After hearing a few more of what he believed were his own jokes performed by the late-night TV comic, Kaseberg sued, seeking more than $600,000 in lost profit and other damages. O’Brien and his writers deny they stole the jokes, and a trial is set for next month.

The case faces some daunting obstacles, most notably tradition and human nature. Celebrated comedians have been “borrowing” jokes at least since 19th-century vaudeville, with the only rule being that the borrower had to add something to make the gag his own. And repeating a real knee-slapper ranks high among life’s basic joys. Enlisting the law to stop the practice seems futile – as W. C. Fields may have recognized when he allegedly paid $50 to have a joke thief’s legs broken.

Yet the law is surprisingly rich with attempts to punish humor heists. Often the cases fail because the allegedly stolen material isn’t original. That’s what happened in 1970 when a judge ruled that copyright law didn’t preclude a filmmaker from using certain “stock” jokes told by comic and satirist Lenny Bruce. Other cases founder on the principle that copyright generally protects expression rather than underlying ideas. Hence the 1976 ruling that TV’s “Sesame Street” could present a skit that was based on another author’s story but told in a very different way. Sometimes, though, joke-theft lawsuits succeed. In 1995, a company argued that it could make T-shirts printed with comedian Jeff Foxworthy’s signature setup line, “You may be a redneck if ...,” because Foxworthy’s punchlines were lifted from other comedians. The court rejected the argument, stressing that the form, not the substance, of the jokes was protected.

The judge in Kaseberg’s case has already used similar analyses to disallow some of the writer’s claims. She tossed, for example, a joke that started with the recent news that the University of Alabama, Birmingham, had dropped its football program. Kaseberg’s big finish: “To which the Oakland Raiders said: ‘Wait, so you can do that?’” Conan O’Brien’s version: “When they heard the news, New York Jets fans said: ‘Wait can you do that?’” The two punchlines, ruled the judge, were different enough that allowing Kaseberg to claim ownership of the joke “would fundamentally impede, rather than ‘promote the progress of’ the creative arts.”

That conclusion could probably apply to the entire case – and it succinctly expresses what’s wrong with copyright in general. Creative types like Kaseberg deserve the law’s assurance that their labors won’t go for naught because of plagiarism. But degrees of difference between works that play on familiar phrases or images are often tough to define, and asking a court to do so risks overbroad prohibitions that discourage fresh ideas.

The music industry, for example, is still grappling with the fallout from a 2015 infringement verdict of $5.3 million against pop artists Robin Thicke and Pharrell Williams, whose 2013 hit “Blurred Lines” was deemed too similar to the late Motown star Marvin Gaye’s “Got to Give it Up.” While the tunes share a style and maybe a bass line, many copyright experts say the melodies and rhythm clearly differ. In any event, the near-record verdict may have prompted other spats, like Radiohead’s 2018 challenge to singer Lana Del Rey over the similarities between her tune “Get Free” and the band’s 1982 hit “Creep” – which in turn was accused of copying elements of the Hollies’ 1974 ditty, “The Air That I Breathe.”

Silicon Valley is, of course, also familiar with messy disputes over copyright and other laws involving intellectual property. After almost a decade, Google, now a part of Alphabet, and Oracle are still wrangling over the web-search titan’s use of the copyrighted Java programming language for its Android smartphone systems. Oracle won the latest round, but Google has asked the U.S. Supreme Court to review the case.

Of all people, techies should appreciate the advantages of avoiding squabbles over who owns an innovation. Silicon Valley’s success was largely based on a willingness to share ideas freely – an approach that the once-dominant technology industry along Boston’s Route 128 refused to embrace to its detriment.

Tighter rules that prohibit only obvious plagiarism might encourage this kind of sharing, on stage as well as in the lab. Otherwise, comedians may continue to sue – and make a joke of copyright law.


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