Most, if not all, comedy writers dream of performing on, writing for, or hosting a late night talk show. The opportunity to showcase your abilities to millions of viewers at home is at the peak of many comedians’ dreams. So imagine you’re watching The Tonight Show (or Late Show or Full Frontal) and see one of your beloved jokes come out of the mouth of the host…and you weren’t attributed. That’s what allegedly happened to 60-year-old Robert “Alex” Kaseberg, the man suing Conan O’Brien for joke theft.
The San Diego retiree filed a lawsuit against O’Brien, Conaco, TBS, and Time Warner on July 22, 2015 in California federal court claiming that five jokes he posted on Twitter and his blog were lifted and performed on Conan. Three of those jokes are at the center of this unprecedented trial, which will move forward presumably next year.
You don’t commonly see comedians in court suing each other over this joke or that joke. That’s because it is extremely hard to prove that someone stole a joke and didn’t simply think of the same bit. To showcase how possible this is, I myself wrote a joke about Martin Luther King Jr. Day many years ago. The premise was that Arizona was the last state in the Union to adopt MLK Jr. Day as a federal holiday (actually, it was North Carolina). The punchline was, “How much do you have to hate black people to not want a paid day off of work?” Except after 3 years of doing the joke, a fellow comedian came up to me after an open mic and said, “I think Ralphie May has a joke just like that.” I turned on his Too Big to Ignore special on Netflix. Not only was it ‘just like’ that—it was that. Our bits were 95% identical, even up to our first tag of, “I’ve got black friends who would celebrate National Ku Klux Klan Day if they got a paid day off.”
Now, I had never seen May’s stand-up. Ever. And yet here we were with identical jokes based on shared observations.
Kaseberg will have to prove that his jokes are so unique that they warrant copyright protection or that a writer on the Conan staff actively stole his jokes. But his case could have a monumental impact on the comedy world should he prove victorious, so joke writers everywhere should start paying attention.
Stand-up comedians don’t have a union. We don’t have an HR office to file a complaint. Most disputes over joke theft get solved amongst one another or on social media or in the press, as has been seen with Louis C.K. v. Dane Cook, Patrice O’Neal v. Amy Schumer, or Everyone v. Carlos Mencia. The interesting twist in this story is: Kaseberg is not a stand-up comedian. Though he has written freelance jokes for Jay Leno and The Tonight Show for roughly 20 years, he has never been on a writing staff. He never got his moment in the spotlight or the closing credits. He’s just a guy who thinks he’s really funny. And his writing chops must be pretty good if multiple jokes he wrote, stolen or not, came out of O’Brien’s mouth.
“Anyone can file a complaint, but supporting it with evidence is quite another thing,” said a Conan rep. “We are looking forward to our day in court.”
I spoke with Kaseberg on the phone last month about what led up to his potentially groundbreaking case, how he got into comedy writing, and the very simple gesture Team Coco could have extended to avoid a big, embarrassing lawsuit.
So their failed attempt to get the case thrown out is good for your case, huh?
They weren’t trying to dismiss the case. It was a copyright law—basically, this is the thing I’ve learned about doing this is this isn’t as much about joke stealing as much as it is about copyright infringement. And that’s really what the case is. You have the statutory laws that protect people’s copyright when you print something or put something on the internet. Taking something off of Twitter or a blog or Facebook applies in this case, and that’s basically how it started. It really was about five jokes. Two have been sort of dismissed in terms of the copyright aspect of this. But the case is still about five jokes. There’ve been articles that’ve come out say it’s three jokes, but the reality is it was five jokes. Two were sort of dismissed for technical reasons, but we can still talk about them in the case.
It was interesting to see that a judge said, “You can sue over these three jokes over here but not these two jokes over there.”
Yeah, they were sort of technical reasons why the other two were sort of tossed away. One was—they changed it enough so that they said, “You can’t really say that’s your joke.” The joke is—and what made it really strange is it was a very obscure story, no one was talking about it in the news—that the University of Alabama at Birmingham decided to get rid of its football program. My joke was, “The Oakland Raiders said, ‘You can do that?’” If you’re doing a show in LA, obviously there’re gonna be some Oakland Raiders fans there because that’s where they used to play. So they changed it to the Jets—which was really smart. But it’s still the same joke as far as I’m concerned. It would have been stupid for them to make it the Oakland Raiders because then someone in the audience would have gone, “Boo!” So they changed it to the Jets, and that was enough of a change for them to toss it. We didn’t really care.
You say you’ve written for Jay Leno?
Yeah. The first time I did stand-up was at UCSB and I was working at a restaurant. And they had a sort of talent show thing, so I got up and did stand-up. I loved it. My idols growing up—I loved three things growing up. I loved comedy. I loved playing running back in football. And I did the decathlon in high school and college. In order, my idols were Bill Cosby, OJ Simpson, and Bruce Jenner. [Ed. note: Now Caitlyn Jenner.]
Quite the list in 2018!
Yeah, and we saw how that turned out. So I loved stand-up. I thought, “Do I want to do this?” I ended up selling computers and working on Wall Street. While I was on Wall Street, I lived almost right across the street from the Comedy Cellar. I thought, “Wow, I could do stand-up right after work. I could wear my suit and be this Wall Street stand-up guy.” But I never did that. When I moved to La Jolla [in California], I did stand-up at the La Jolla Comedy Store. When I was still a stockbroker, someone said, “Hey, you’re really funny. Can you write jokes for a speech of mine?” He said, “You did such a good job. I have Jay Leno’s phone number. He accepts freelance submissions.” And I had the first joke of the year! So I thought, “Oh this is easy.”
You had the first joke of the year on The Tonight Show?
Yeah. I wrote a joke for this guy for a Christmas party. He found the freelance number and knew someone at NBC and I had the first joke of the new year. So I thought, “This is what I’m going to be doing next.” And I decided to be a comedy writer.
The other thing that was really great was people would call in all the time asking for people on their staff to write jokes for them for a toast or a wedding or whatever. Instead of burdening their writers, because legally I don’t think they were allowed to do it anyway, they would say, “Hey, this guy’s a writer. He writes jokes for The Tonight Show,” and they would give them to me. So I did, for a while, a lot of the freelance stuff from The Tonight Show.
How long were you doing that?
From the first time—I don’t want to put Jay Leno in this. He’s been great. He’s been wonderful. I still write material for him. I had a joke—he was the host of The Nobel Peace Prize Awards and I had a joke on that.
So you have a decades-long working relationship with Jay Leno?
But you don’t do stand-up anymore?
I don’t do stand-up anymore. I did stand-up in the La Jolla Comedy Store, and that was great. They always give the advice of Jimmy Brogan, who was Jay Leno’s writer, he said, “You do it because it’s the best way to hone your comedy writing. You learn about timing.” Then I sort of fell in love with it—it seemed like a sport. It reminded me of being in sports again. I continued doing independent investing for myself, but I was also doing freelance jobs for local media places: radio shows and TV shows.
What made you not pursue stand-up as a career?
That’s a great question. I actually had more success sooner than most people did.
Yeah, most people don’t get to write jokes for The Tonight Show right away. That’s not the normal first gig in comedy.
I talked to Jim Brogan. “So Jim, am I going to be on the staff?” He goes, “Yeah. This is where we hire people from. We hire from the freelance contributors.” And it just didn’t happen. [None of the writers] leave The Tonight Show. Why would you? But he suggested doing stand-up and I got good enough at it that The Comedy Store was sending me to do corporate gigs. I wasn’t the funniest, but I was the cleanest. So they could send me out and not worry about getting in trouble. You know?
But I just saw this was leading down the path to performing at the Funny Farm in Tallahassee. I wasn’t Richard Pryor and I wasn’t Eddie Murphy. So when I saw The Tonight Show and all these other people were way, way better than I was—it took them 10 years to get anywhere—I just said, “Nah. I want to do the writing.” I have a kid. Do I really want to do that for 10 years? There’s no such thing as an overnight success in comedy that I’m aware of.
Did you ever try to get staffed on other shows?
What I ran into was—there’s a way people in TV shows turn people down, that way producers don’t have to deal with waiters handing them scripts—is they say, “No, it has to be submitted by a Writers Guild agent.” They’ll say, “How many packets have you submitted?” Well, you need to have an agent to submit the packets, so I focused on finding an agent. I’m still doing that. It’s hard to impossible, sending out hundreds of letters. I’m still talking to about two or three people because, you know, publicity comes up from the Conan thing and people go, “Are you being represented? No? Okay, well, we’ll get back to you.” Getting the agent was the big step.
What are some shows you’ve tried to get staffed on in the past?
I had a joke on Letterman. I’ve had jokes on a lot from the freelance angle. They all say, “Oh, we don’t accept freelance jokes.” Until it’s really funny, and then all of a sudden they do accept freelance jokes. For a period, I focused really hard on getting a WGA agent, but mostly I thought the comedy would be what would get me in there. If I could write funnier jokes and more jokes that that was the key.
You also have this blog with an insane amount of posts on it. Tell me a bit more about what these outlets like your blog and Twitter mean for you.
I discovered [blogging] not long after 9/11. I thought, “This will be an avenue to get my material out there.” That was it. It’s really nothing more than an online diary.
It looks like a lot of late night jokes.
It started out kind of as trying to try different jokes, or now and again a different take on something. I actually sold some of the articles on the blog to various things—newspapers or magazines. It’s been a good marketing tool sort of by accident. The blog is sort of R or PG. Twitter is sort of R or PG. Then Facebook is G. These things sort of pop up as ways to get jokes out there.
Have you had any big stars or staff writers follow you on Twitter?
All the time. I’ve had direct message conversations with Whitney Cummings and Louis C.K. and I don’t even know if they remember them. They just sort of responded, “Oh, I like this joke.”
In comedy, we don’t have a union. We don’t have a lot of protections for our material—unless you go on Netflix and do word-for-word the exact same material as someone else’s Netflix special. I find it interesting you say the case is more about copyright infringement than joke stealing. What’s the difference between the two for you?
Copyright protection is the protection of whatever you write. I wrote the jokes. So they automatically fall under copyright statutes. You can’t steal stuff—that’s the bottom line. Everyone knows that. You learn that when you’re a little kid. If you’re brought up right, you don’t steal anything. Getting away with it isn’t enough of a reason to keep doing it. There are laws that protect people from stealing someone’s writing. This is not Clarence Darrow—I’m not a legal genius discussing this. That’s what this is about. Just because you have the means and the fame to fight it, doesn’t mean it’s okay to steal jokes from freelance writers. It gets into legal ramifications over what’s copyrightable, and I can’t get into that without hurting my case.
How did you feel when you first heard the jokes? Were you a big Conan watcher?
I was always a Conan fan. That’s why I was watching the monologues and went, “Holy crap.” I had been watching for 25 years or 20 years or however long he’s been on and that’s never happened before. That’s never happened on any show that I was watching where I go, “Oh my god. What just happened?” I thought he’s brilliant. I still think his speech to Harvard is one of the greatest things there is in terms of going out there and facing the real world and it being funny. I was a big fan. I wouldn’t have been watching so carefully if I hadn’t been.
So how did it feel when the jokes went up?
We’re back in the case again.
Well, you can talk about your feelings, no?
No…no. That could be used in a court of law against me.
Okay. It seemed like at first, from what I’ve read, you weren’t positive it was joke theft until you saw a certain volume of your jokes on air.
No, no, no. I was positive from the first one.
You didn’t even think, “Oh, shared life experience.”
There’s a show on Vice. They had Patton Oswalt—this is talking about the case, which I probably shouldn’t do—but Patton Oswalt used to be their expert comic witness. Vice did an episode, and they quote Patton Oswalt, “You instantly in your gut know when you’ve had a joke stolen.” I agree with their former comedy expert on that. It was a gut feeling.
Do you remember the first season of Last Comic Standing? Dat Phan won it. Arguably, one of the least funny people I’ve met in my life. I did stand-up with him in San Diego. Because they didn’t really have the format tweaked, the winner was the guy who had just an ironclad 10 minutes. That was that whole thing. He spent his whole life ironing out an absolute bullet-proof 10 minutes. If a heckler, god forbid, said something to him, he looked like a robot whose battery sort of gave out for a second. He didn’t know how to respond. I was hosting one night at the Comedy Store in La Jolla, and I introduced him as, “Here’s Dat Phan. He’s the cousin of the rich guy Dat Com.” First thing I saw [on Last Comic Standing] was him use that joke. [Dat Phan had no comment on the allegation.]
So this is isn’t the first time you’ve had a joke stolen. Have their been other incidents?
No, no. There are coincidences. Here’s a recent example: There was the caravan, right? In Mexico? Before the midterm elections, the Republicans were talking, ‘caravan, caravan, caravan.’ And then the New York Marathon started and the joke was Trump thought that was the caravan. Three different shows had that joke. I think [Jimmy] Fallon had it; I think [Seth] Meyers had it. There are coincidences when the joke is obvious. But when the joke is not obvious, and when it’s the 7th or 8th or 20th story that you’ve read that day, then that’s not a coincidence. That’s when you learn the difference. Coincidences do happen, but that was back when Paris Hilton was in the news and the guy was winning the hot dog eating contest, and that’s an obvious connection between Paris Hilton and a guy who eats a lot of hot dogs. Those jokes would come out every July 5th. Those are rare now.
What do you think about the celebrity joke theft claims that are out there, like with Amy Schumer and Patrice O’Neal or Louis C.K. and Dane Cook?
There’s a situation where you can hear a joke and like it and just kind of incorporate it by accident, but most people when they do that go, “Oh crap. That’s not my joke.” And I think that’s the example—Amy Schumer however, that’s a different thing. There’s a whole 25-minute video of boom-boom-boom-boom-boom. I’m like, okay. Wendy Liebman has a very obvious delivery style. “I’m old-fashioned. I believe on the first date the man should pay…for sex.” Amy Schumer did the exact same thing, even with the pause. I’m like, she heard it. She liked it.
First time I ever did a stand-up act, I stood up on stage in 7th grade and recited an entire Bill Cosby bit for 10 minutes, word-for-word, because I had it memorized. I thought it was funny. It was because the material is funny. As you go along, you learn you can’t do that. There’re stories that comedy writers were told not to do new material when Robin Williams was at the Comedy Store. It’s something that, 99 times out of 100, gets worked out between the comedians. There’s no reason to bring in—I don’t believe that. I’ve never had to do that. In my case, when we went to discuss this in a professional way, I got told to pound sand in a very ugly manner.
What’s ‘pound sand’ mean?
‘Go pound sand up your ass. Go screw yourself.’ That was a phone call, but that kind of goes back to the case, so I can’t really talk about. I keep bringing up the thing I can’t talk about.
One problem with dealing with Leno exclusively from the top is he was so professional and he’s so nice and such a good guy. I sheepishly asked for tickets one time to see the show early on and his assistant, Lisa Nelson, said, “Sure!” And oh my god, I get there, and I’m in the green room. I’m sitting next to the band in the front seat. They walk me across the stage. It was amazing. And that’s always the way it’s been. Other people aren’t like that. I learned that the hard way!
Who are you technically suing?
In a case like this, the litigants are named and we’ve named everyone we think should be named. It’s TBS; it’s Time Warner; it’s his production company; it’s the producer, the three specific writers, Conan O’Brien. That’s public record.
But you don’t think…well, you’re not going to answer that. So why would I bother asking?
You were going to ask me if I thought Conan actually stole the jokes, right?
Well, I don’t think you think Conan himself stole the jokes. We both know Conan’s not scrolling through your Twitter looking for jokes.
=laughs= Well we don’t know that.
Maybe he’s secretly your biggest fan.
The fact that he’s blocked me on Twitter pretty much excludes that possibility.
That’s why I asked if any writers followed you before this all went down because maybe they were following you and you thought it was that guy.
As soon as the legal stuff hit the fan, everyone on their staff blocked me. We did find all of these comedy lists on Twitter we were both on though.
At first, you’ve said publicly, you were hoping they would see that someone poached your material and clearly you should be on their writing staff. Wasn’t that an original hope?
Absolutely. The point of the blog and putting jokes on Twitter was just marketing. The blog has led to a lot of freelance gigs. Not all of them great, but it has. A lot of writers have gotten jobs as comedy writers because of blogs.
Did you formally ask Team Coco, “Hey, you guys took my jokes. Have you considered just hiring me?”
Yeah, that’s getting into the case.
Well, you’ve talked about this publicly. It seems like, from what you’ve said publicly, you would have been happy if they hired you as a staff writer as a resolution.
I want this on the record: I never asked them to pay me. I never asked for a job. When I initially contacted them, all I asked for was recognition. I wanted them to acknowledge that those were my jokes. That’s as far as it got.
What would that recognition have looked like to you?
It never got that far. The big thing was attribution. We actually had—
What’s the difference between attribution and recognition?
You’re attributing the jokes to the original writer and giving credit to the original writer. In a magazine, they’d go, “Oh, here’re the jokes from Alex Kaseberg.”
I empathize with that. I have friends who have had jokes stolen by bigger personalities. For example, Brett Druck had jokes stolen by @FatJew on Twitter and he was devastated, seeing his image and jokes on someone else’s page with his name cropped out of the bottom corner. He just wanted to be tagged or for hundreds of thousands of people to see his name on the image where his joke was. In your ideal world, what would this attribution or recognition look like to you?
I don’t know. It didn’t get that far. It was angry denials and insults. And that was it.
Yea, that’s pretty much what triggered the whole thing. My reaction to his reaction was he was insulting, and that was the last straw as far as I’m concerned.
Suffice it to say, I contacted them and their reaction was borderline horrific.
Wait, who was ‘he’? Who was ‘they’?
I’m being cute about this. When this whole thing happened—I just figured out what I can talk about—I posted a blog post about my experience. I was so upset. I was so disappointed. So I described the situation on my blog—that was public. It was Mike Sweeney. He’s the head writer. As soon as the case broke, guess what, he wasn’t the head writer anymore. I don’t know if that’s coincidence or not. But I describe very clearly, and that’s public, about the experience. The first joke was like, ‘They stole my joke. Big deal. It’s one joke. There’s nothing I can do about it.” Happens again. “Okay, this sucks. I’m going to send an email.” No response. Okay, well I tried. Third time, I go, “No. Sorry. This will not stand,” to quote The Dude. “This aggression will not stand.” Contacted them. He got on the phone—that’s where the expression ‘go pound sand’ came from. It was very unpleasant. I posted the experience on my blog and then I wrote a fourth joke that was used, and that’s when we filed the lawsuit.
This is all he would have had to do. This is all he would have had to say was, “Send us some jokes via email and we’ll consider using them.” That’s all. The whole thing would’ve been avoided if he had just been decent enough to do that. I didn’t really pick this fight—they did. I wasn’t going to back down.
I’ve since found out that their legal approach of scorched Earth—you know, everything they’ve asked us, we’ve generally provided. Everything we’ve asked them, they’ve told us to pound sand. That’s a type of legal approach and the goal is to scare someone away. And they picked the wrong guy. You just can’t do that. I don’t care who you are or who I am not. You can’t do that to someone. You can’t take someone’s jokes.
Have any comedians reached out to you privately in support?
Oh, yeah. But a lot of them said, “Hey, look, I don’t want to be on the record.”
[When asked for comment regarding the phone call, a Conan rep shared, “What Mr. Kaseberg claims Mr. Sweeney said is not true, much like the “facts” underlying his lawsuit.].