TBS comedian and late-night talk show host Conan O’Brien was given good reason to frown Monday when a federal judge denied summary judgment as to three of the five jokes comedy writer Alex Kaseberg claims O’Brien and his writing team stole from Kaseberg’s Twitter feed between December 2014 and June 2015. The three jokes left standing: a gag about New England Patriots’ quarterback Tom Brady giving Seattle Seahawks coach Pete Carroll the new car Brady promised to award the MVP of Superbowl XLIX, a jeer about a hypothetical street named after Bruce Jenner (i.e., “cul-de-sacless”), and a discovery that the Washington Monument is ten inches shorter than previously recorded because of “shrinkage” resulting from cold weather.

As we previously reported, O’Brien filed for summary judgment in February arguing the jokes were created independently of Kaseberg’s tweets and derive from current events and common themes of life.  Judge Janis Sammartino agreed the jokes contain inherent newsworthiness and therefore carry “thin” copyright protection where proof of infringement requires verbatim plagiarism.  The court also found the other two jokes poking fun at the N.Y. Jets and Delta Airlines were independently created and/or too different to withstand summary judgment.  However, with respect to the other three jeers, Judge Sammartino found the material issue of whether O’Brien and his team had access to Kasberg’s Twitter feed and whether O’Brien’s jokes are substantially similar to Kasberg’s Twitter content remain disputed.

The defeat leaves O’Brien with the choice of settlement or trial.  Although copyright infringement suits between comics rarely come before a jury, given O’Brien’s caustic deposition testimony where he declares “accusing a comedian of stealing a joke is the worst thing you can accuse them of… short of murder,” the future of this case remains uncertain.

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