This quotation from 18th century poet and satirist Charles Churchill1 (often misattributed to Winston) brings to mind the recent Southern District of California decision in Kaseberg v. Conaco, Case No. 15-cv-1637 JLS (DHB) (S.D. Cal. May 12, 2017), 2017 WL 1969300, wherein Robert Kaseberg claimed that five jokes he wrote and published on his blog or Twitter feed were infringed by jokes told by Conan O'Brien in his late-night monologues. Each of the jokes was based on a current news item and delivered in a standard format of set-up (factual premise from news) and delivery (punchline). In denying defendants' motion for summary judgment on three of the five jokes at issue, U.S. District Court Judge Janis L. Sammartino considered arguments on copying (access and similarities) versus independent creation, protected expression (or not), and scope of protection (“thin” copyright or broader protection). Serious issues indeed!

The Jokes at Issue

Kaseberg Tom Brady joke: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.”

Conan Tom Brady joke: “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. Which is very nice. I think that's nice. I do. Yes. So Brady's giving his truck to Seahawks coach Pete Carroll.”

Kaseberg Washington Monument joke: “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”