Today I will be presenting at the Connecting Writers with Hollywood conference, in Spokane, Washington. I will be speaking about intellectual property and other legal issues that arise for writers and producers. More information about the conference can be found here.
In an unusual case, a comedian has filed suit against the Conan O-Brien Show for copyright infringement arising out of alleged joke theft. The plaintiff, Robert Alexander Kaseberg, alleges that five jokes posted on his comedy blog and Twitter account were unlawfully stolen and featured in the Conan show monologue. The following are two examples of Kaseberg’s alleged infringements:
The “Tom Brady” joke:
Kaseberg version: “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 monologue version: “Tom Brady said he wants to give the truck that he was given as SuperBowl MVP to the guy who won the SuperBowl for the Patriots. Which is very nice. Yeah, I think that’s nice. I do. Yes. So Brady’s giving his truck to Seahawks coach Pete Carroll.”
The “Bruce Jenner” joke:
Kaseberg version: “Three towns, one in Texas, one in Tennessee, have streets named after Bruce Jenner and now they have to consider changing them to Caitlyn. And one will have to change from a Cul-de-Sac to a Cul-De-Sackless.”
Conan monologue version: “Some cities that have streets named after Bruce Jenner are trying to change the streets’ names to Caitlyn Jenner. If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack.”
In order to establish copyright infringement, Kaseberg must show that the Conan show writers had access to his jokes; and that the monologue jokes are substantially similar to Kaseberg's jokes. In their motion for summary judgment, the Conan defendants first argue that merely posting content online is insufficient to establish access. Further, the Conan defendants point out that the factual setups for all of the jokes are derived from current news events and stories, for which no comedian may claim a monopoly. Finally, the Conan writers also testified that parallel thought among comedy writers is an innate reality in the world of late-night talk shows, and it is not unusual for multiple comedians and social media users to independently create jokes in a similar vein. Conan O’Brien has vehemently denied the lawsuit allegations, stating in a deposition that “accusing a comedian of stealing a joke is the worst thing you can accuse them of, in my opinion, short of murder.”
While the jokes at issue do appear to bear some similarities, I think it’s unlikely that Kaseberg's claims will survive summary judgment. Jokes are generally derived from the realm of mere “ideas,” which are not protectable under copyright. Oral argument in the case is scheduled for this afternoon, and the judge will likely issue a ruling shortly thereafter. The case citation is Kaseberg v. Conaco, LLC et. al., 3:15-cv-01637-JLS-DHB.
Congratulations to client Andy Brown on the release of his book, Warnings Unheeded: Twin Tragedies at Fairchild Air Force Base. The book is a vivid and moving account of the events that led up to the 1994 mass shooting and B-52 bomber crash at Fairchild Air Force Base in Spokane, Washington. These two tragic events occurred only four days apart. Warnings Unheeded is the result of seven years of meticulous research and development, and focuses on the numerous warning signs from mental health professionals and military airmen that could have prevented the tragedies - but instead, went unheeded. The author, Staff Sergeant Brown, was the military police officer that successfully ended the Fairchild hospital mass shooter’s rampage with a remarkable and heroic pistol shot.
The book is available for purchase on Amazon and Fairchildhospitalshooting.com.
UPDATE: Warnings Unheeded reached the #1 spot on Amazon's "True Crime" new release list - congrats Andy!
In a case closely watched by the music industry, a California jury has found that Led Zeppelin’s iconic song “Stairway to Heaven” does not infringe the copyright of the song “Taurus” by the band Spirit. At trial, both Jimmy Page and Robert Plant testified that they had never heard “Taurus” prior to the creation of “Stairway to Heaven.” Interestingly, the jury found otherwise on this issue (see the jury’s answer to question two below), but their verdict ultimately rested on the lack of extrinsic substantial similarity between the two songs.
At trial, the jury was only permitted to hear an expert guitar performance of “Taurus” that was based on the sheet music submitted with the federal copyright registration, rather than the actual studio recording (featured below). Other curiosities of the trial included Robert Plant’s testimony that he cannot read nor write music; and the over 100 objections sustained against counsel for plaintiff Michael Skidmore (the trustee of the estate of songwriter Randy Wolfe). Observers of the trial have commented that the conduct of plaintiff’s counsel appeared to test the limits of both the judge’s and jury’s patience. Plaintiffs have vowed to appeal the jury’s verdict. The case citation is Michael Skidmore v. Led Zeppelin et. al., CV 15-03462-RGK.
Skidmore v. Led Zeppelin jury verdict
Today I wrote to my U.S. congresswoman, Suzan DelBene, to ask for her support for the Fair Play Fair Pay Act, H.R. 1733. The Act would rectify a major flaw in the Copyright Act by requiring that owners of sound recordings be paid for radio airplay on terrestrial radio. Although songwriters are paid for terrestrial radio airplay through the performing rights organizations (ASCAP, BMI, or SESAC), sound recording copyright owners (generally either recording artists or their record label) are currently paid nothing for terrestrial radio airplay. The Act would also partially resolve another flaw in the Copyright Act, by providing that the performance right extends to sound recordings created prior to February 15, 1972. The United States currently sits on a rarefied short list of countries – which includes North Korea, China, and Iran – that do not pay artists a performance royalty for sound recordings on terrestrial radio.
The MusicFirst coalition provides an easy way for individuals to reach out to members of Congress by filling out a short form through their website here.
Heather Morado