Patton Oswalt Discusses Joke Theft Among Comedians (HBO)

There's also the question of how was any harm done to Kaseberg? He was already publishing these jokes publicly. He put them in the public domain. So how does Conan stealing them hurt him?

Caveat: I'm not taking a side on the actual case.

I think the argument here is that he is putting them in the public domain for the free enjoyment of others and for his own benefit (subscribers, followers, whatever). Someone might retell that joke to a friend and have no problem. However someone like Conan taking a joke and using it on a for-profit TV network is a completely different situation.

The closest analogy I can think of is fan art. Someone doing unique artwork of a character is completely fine under fair use. They can post that artwork online for others to see and enjoy for free. However, a company, even the company that owns the character the art is depicting, cannot then take that art and make it into merchandise. The main difference is that a joke is a lot easier to copy accidentally.

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