Conan O'Brien On Copyright Trolling

Lessons from the famous late-night host on why he settled a lawsuit filed against him and his writing team for alleged joke-stealing.

Conan O’Brien (Photo by Jamie McCarthy/Getty Images)

Over the years, we have been treated to a steady media drumbeat, stoked by frequently sued technology companies, bemoaning the patent troll problem. At the heart of that problem is the significant imbalance between the cost of defense and the amount of money the erstwhile troll is willing to take to go away. A similar dynamic, albeit one that perhaps garners less media attention, can exist with certain types of copyright cases as well. Certain porn companies, for example, have become notorious for alleged copyright trolling.

Such plaintiffs — and there are other examples of supposed copyright trolls that target various industries — find succor by leveraging the cost of defense as a tool to extract settlements. Yes, the claims they raise can be colorable, and their behavior is incentivized by certain elements of the copyright statute. At the same time, defendants sued by alleged copyright trolls are reluctant customers to say the least, with much gnashing of teeth before paying to make their legal problems disappear.

While reasonable people can disagree about the true contours of what makes a copyright troll, there is a lot we can learn from considering why defendants decide to settle with plaintiffs of that alleged ilk. We know, as with all types of IP cases, that the overwhelming majority of cases settle — often well before trial. It is important, therefore, for us to get as broad an understanding as we can about why people settle. Likewise, it is valuable to understand why litigants fight for as long as they do before settling.

As a general matter, my experience has been that the best teachers for practicing litigators are sitting judges. But a close second in my book are actual litigants, especially when they are willing to share why and how they adopted certain positions while in litigation. How they balance principle versus practicality is often fascinating, with the potential to help guide us as we counsel our own clients in their litigations. Of particular value are the insights of litigants who are not very experienced with legal proceedings, since they approach things from an oftentimes less jaded perspective than that of serial litigants.

Sometimes, we get lucky and our teacher ends up being someone famous in their own right. This is one of those weeks, as we were treated to a thoughtful essay by famous late-night host Conan O’Brien on why he settled a lawsuit filed against him and his writing team for alleged joke-stealing. The piece was published in Variety, providing Conan’s reflections on why he settled the case just a month before trial was scheduled to begin. While eve-of-trial settlements are commonplace because parties want to avoid the risk of a negative verdict, they are also indicative of cases where the settling party was willing to fight long and hard before bowing out. Conan’s case was no exception. Nor is he shy about sharing why he fought for as long as he did, despite the “countless legal bills” that he was forced to pay for the privilege.

At the outset, Conan makes clear that neither he nor his writers had ever heard of the plaintiff, much less stolen his jokes. In fact, Conan does not hesitate to state that in his view joke-stealing is a dishonorable act that would run counter to the values he has espoused his entire career. In his words, if he thought that any of his writers “took material from someone else I would have fired that writer immediately, personally apologized, and made financial reparations.” Here, however, he knew that neither he nor his writers had done anything of the sort with respect to the plaintiff’s copyrighted material.

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In support, Conan points to times where he and other famous comics told identical jokes, based on topical events, without any joke-stealing taking place. While he acknowledges that one joke he told was similar to something the plaintiff had posted on Twitter, his subsequent investigation unearthed that over 30 other people had come up with a similar joke as well. That did not stop the plaintiff from suing the deep-pocketed Conan, including on at least one other joke that Conan “had proof … was written prior to his posts.”

Interestingly, as the case was pending, Conan and his legal team astutely asked an assistant to monitor the plaintiff’s Twitter feed for other examples of him “copying” an earlier Conan joke. Despite finding 15 such examples, Conan chose not to countersue. Moreover, he ultimately agreed to resolve the case so to avoid a “potentially farcical and expensive jury trial in federal court over five jokes that don’t even make sense anymore.” At the same time, the experience left him with a bad feeling about the “potential for endless time-wasting lawsuits” driven by an “easily triggered legal system” that rewards aggressive plaintiffs for weak claims that can arise in the current age of social media-hosted topical comedy. Despite those misgivings, this particular lawsuit had dragged on long enough that Conan decided that settlement was a better option than escalation or going through trial.

So what does Conan ascribe his willingness to fight to — other than that he can afford the legal fees to fight on principle, of course — for years, no less? In his telling, “defending the integrity and honesty” of his writers was his primary motivation. As well as his motivation for publicly sharing his views on the litigation experience he endured. Yet more proof that principle does drive action, even if the end result is a resolution of the dispute.

Ultimately, this episode shows us that claims can arise out of the free flow of information online, even without real wrongdoing on the part of the accused infringer. At the same time, those with the resources and motivation to defend themselves will continue to do so, even at great expense and distraction over time.

While Conan undoubtedly prefers to regale us with jokes, his depiction of his litigation experience is as bracing for us to contend with as a snappy retort. Yes, he is obviously relieved to have settled, even if he is aggrieved about the wasted time and resources it took to reach a settlement. But that does not stop him from pointing out that he should not have been put in that position in the first place. Even though this episode is over, it is a safe bet Conan won’t be hosting any copyright trolls on his late-night couch any time soon.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.