What does it mean when two jokes are very similar in both set-up and punch line? Maybe nothing. The reality is, jokes are somewhat formulaic and are often based on observations about current events. It’s not uncommon for late night hosts to tell very similar-sounding jokes on the same night simply because the source material — that day’s news — is the same.
That doesn’t mean they were stealing from one another, or even that they were in communication. It just happens. Until the time when it doesn’t.
Comedian Conan O’Brien recently settled a lawsuit with a freelance writer who, in 2015, accused him and his show’s writing staff of stealing five jokes he had posted on his Twitter account. The terms of the settlement were not disclosed, but O’Brien claims that the decision to settle was to avoid “a potentially farcical and expensive” trial after what had already been four years of litigation. O’Brien insists that he and his staff never stole any of the jokes.
“Short of murder, stealing material is the worst thing any comic can be accused of, and I have devoted 34 years in show business striving for originality,” O’Brien wrote in an essay for Variety. “Had I, for one second, thought that any of my writers took material from someone else I would have fired that writer immediately, personally apologized, and made financial reparations.”
3 too-similar jokes might have made trouble for O’Brien
Although people settle lawsuits for a variety of good reasons, there is some evidence the litigation wasn’t going all in O’Brien’s favor. The judge in the case had ruled two of the jokes were not similar enough to O’Brien’s to be considered copyright infringement — but three of them might be. He said that they were “sufficiently objectively virtually identical” that a reasonable jury could find infringement. That does not mean a jury necessarily would do so; it just means that the case against O’Brien was strong enough to continue.
Creative coincidences really do happen all the time. As O’Brien pointed out in his Variety essay, he, David Letterman and Jay Leno once made virtually identical Dan Quayle jokes on the same night — and the joke wasn’t obvious. “Dan Quayle announced today that he will not be running for president in ’96. However, he did not rule out running in ’97.”
And, he points out that Twitter has made the issue much more obvious. “Two years ago,” he writes, “one of our writers came up with a joke referencing Kendall Jenner’s ill-fated Pepsi commercial, and so did 111 Twitter users.”
If you believe your copyrighted work has been infringed upon, talk to an experienced intellectual property attorney.