On May 12th, a federal judge for the Southern District of California denied in part comedian and late night talk show host Conan O’Brien’s motion for summary judgment in a lawsuit from Robert Alexander Kaseberg. Kaseberg is suing O’Brien/O’Brien’s company, Turner Broadcasting System (TBS), and CBS, among others, over jokes that were allegedly stolen from him. Now, the case is one step closer to heading to trial.
Per the facts of the case, Kaseberg is a long-time freelance writer and comedian, whose work has appeared in several major publications, including the Chicago Tribune, New York Times, The Washington Post, The Los Angeles Times and Time. In late 2014/ early 2015, Kaseberg noticed similarities between his jokes and the jokes used in O’Brien’s opening monologue for his show Conan, which is broadcast on the TBS station. After unsuccessfully trying to contact the show’s producers, he filed a copyright infringement suit. Kaseberg is claiming that five jokes were taken: the University of Alabama, Birmingham joke (the UAB joke), the Delta Airlines joke (the Delta joke), the Tom Brady joke, the Washington Monument joke and the Caitlyn Jenner joke (the Jenner joke). The jokes were all based on current events.
The defendants filed a motion for summary judgment on five grounds: 1) Kaseberg lacks standing because he didn’t register two of the jokes with the United States Copyright Office; 2) two of the allegedly infringing jokes were created before Kaseberg’s publication of his own; 3) Kaseberg cannot prove direct copying and access to his jokes; (4) Kaseberg’s work is “at best” entitled to “thin copyright protection,” and he cannot establish that the works are virtually identical; and 5) the defendants independently created their works. (As a reminder, summary judgment is granted when a judge finds that there is no genuine issue of material fact. That is, there are no facts at issue for a jury to make decisions about.)
On the first ground, the court denied the motion, finding that Kaseberg’s failure to provide the relevant applications for the two jokes in a timely manner for discovery was harmless with regards to his standing to bring the suit. The Defendants were also on notice about the filing of the copyright applications. (Kaseberg had filed an amended complaint with the applications for the UAB and the Tom Brady jokes attached.)
The court pointed out that “if Defendants discover fatal deficiencies in Plaintiff’s applications then Defendants should also again be permitted to move for Summary Judgment on those discrete grounds.”
On the second ground, the defendants claimed that the Delta joke and the Washington Monument joke were created before Kaseberg published his versions. The court granted the motion on the Delta joke, finding that the defendants’ Delta joke appeared in emails of Conan show writers five hours before Plaintiff published his.
However, the court denied the motion on the Washington Monument joke, finding the defendants’ argument that the joke was created a year before insufficient because the evidence provided of the prior year’s joke indicated that it was not like the one in Kaseberg’s complaint.
On the third ground, the court denied the motion. Kaseberg’s expert provided evidence that the chance of the parties having several overlapping jokes within such a short time frame was between .003% and .0075%. The court also pointed out that the writers at Conan were put on notice by Kaseberg via Twitter that he was alleging they’d taken his material without permission, and that a group of writers had discussed the accusation. One of them even visited Kaseberg’s blog after the discussion. “Whether or not overwhelming, this nonetheless suffices to create genuine issue of material fact as to whether Defendants had a reasonable, rather than bare, possibility of accessing Plaintiff’s jokes.”
Where creative minds come together
On the fourth ground, the court granted the motion, finding that the jokes were only entitled to “thin” copyright protection because the joke structure of the pertinent jokes relies on starting with factual context—facts are not protected by copyright—and then concluding with a punchline that is creative commentary on the preceding facts. The court then sought to determine whether the jokes from Conan were identical to Kaseberg’s.
The court granted the summary judgment on the UAB joke, but denied it to the Jenner, Washington Monument and Brady jokes.
On the fifth ground, the court also denied the motion on independent creation because the defendants’ evidence of independent creation was simply individual declarations that the jokes were not stolen. The court found that credibility determinations were inappropriate for summary judgment rulings.
The case is Robert Alexander Kaseberg v. Conaco, LLC et al, 15cv1637, Southern District of California.
For updates on this case, stay tuned to our blog.
