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He Who Laughs Last

Robert Alexander Kaseberg has been a freelance writer and comedy writer for over twenty years. Although he has never been staffed or credited as a writer on any television show, he has written articles and jokes that have appeared in publications such as The Chicago Tribune, The New York Times, The Washington Post, The Los Angeles Times, Time magazine, and Sports Illustrated, among others. Additionally, he has worked with an independent production company for the last twenty years through which he has had over one-thousand jokes used by Jay Leno.

Kaseberg, who greatly enjoys late-night television talk shows and has posted many monologue style jokes to his blog and twitter account, began to notice in late 2014 and early 2015 similarities between his posts and several of the jokes used in the monologues  of the late-night television show Conan. Conan O'Brien created and hosts Conan with the support of a staff of writers including Mike Sweeney, who served as Conan's head writer during all times relevant to the lawsuit. After Kaseberg--several times--unsuccessfully reached out to Conan staff members in hopes of establishing a professional relationship, he filed suit in the United States District Court for the Southern District of California for copyright infringement of five jokes, spanning  the time period from December 2, 2014 to June 9, 2015. The jokes are as follows.

On December 2, 2014, Kaseberg posted on his blog that "The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said; 'Wait, so you can do that?'" The following day, O'Brien stated on Conan that there was "Big news in sports. University of Alabama-Birmingham has decided to discontinue its football team. Yeah. When they heard the news, New York Jets fans said, 'Wait can you do that? It's something you can do?'"

On January 14, 2015, at approximately 11:33 a.m., a Conan staff writer named Josh Comers submitted via email a monologue joke for that evening's Conan episode that stated "Yesterday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest." Later that afternoon, at 4:14 p.m., Kaseberg posted on his blog that "A Delta flight this week took off from Cleveland to New York with just two passengers. And they fought over control of the armrest the entire flight." Sometime over the next several hours, O'Brien performed a version of the joke in his Conan monologue.

On February 3, 2015, Kaseberg posted on Twitter at 8:49 a.m. and on his blog at 9:02 a.m. that "Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.” Later that day, at approximately 3:14 p.m., Conan staff writer Brian Kiley submitted a joke for the following night's Conan monologue, which O'Brien later performed, stating "Tom Brady said he wants to give the truck that he was given as Super Bowl MVP . . . to the guy who won the Super Bowl for the Patriots. Which is very nice. I think that's nice. I do. Yes. So Brady's giving his truck to Seahawks coach Pete Carroll."

On February 17, 2015, Kaseberg posted on Twitter at 7:21 a.m. and on his blog at 11:20 a.m. that "The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage." Later that day, at approximately 1:23 p.m., Kiley submitted a joke for that night's Conan monologue, which O'Brien later performed, stating "Yesterday surveyors announced that the Washington Monument is ten inches shorter than what's been previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather. Penis joke."

On June 9, 2015, Kaseberg posted on his blog at 11:05 a.m. and on Twitter at 11:31 a.m. that "Three towns, two in Texas, one in Tennessee, have streets named after Bruce Jenner and now they have to consider changing them to Caitlyn. And one will have to change from a Cul-De-Sac to a Cul-De-Sackless." Later that day, at approximately 1:34 p.m., Conan staff writer Rob Kutner submitted a joke for that night's Conan monologue, which O'Brien later performed, stating "Some cities that have streets named after Bruce Jenner are trying to change the streets' names to Caitlyn Jenner. If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack."

When the Conan defendants moved for summary judgment on Kaseberg’s infringement claims, the district court found that the Conan defendants were entitled to an award of summary judgment as to the Delta Airlines joke because the creation of the joke by Comers predated Kaseberg's creation of his similar joke. The exact hour of the use of the joke in the monologue in the taping of Conan was irrelevant. The district court noted that the Conan defendants raised a triable issue of fact regarding the Washington Monument joke as to whether a similar joke which was used a year earlier on the Conan show qualified as prior creation.

As to the remaining jokes, the district court found that a genuine issue of material fact existed as to whether the Conan writers had a reasonable, rather than bare, possibility of accessing Kaseberg’s allegedly infringed-upon jokes because at least two Conan writers were on notice that someone on Twitter was either implying or asserting that the Conan staff was copying his jokes, one Conan  writer thought that  this development was of enough moment to discuss it with another writer; and a separate group of writers was also likely on notice regarding Kaseberg and his accusations early in the relevant timeline. Furthermore, Kaseberg supplied an expert report which indicated that the probability of the clustering of the four “overlapping” jokes between Kaseberg and the Conan monologues was somewhere between .003% and .0075%.  

However, the protectable aspect in Kaseberg's joke about discontinuing a football team was the expression of a fictional version of the Oakland Raiders hearing the news of the University of Alabama-Birmingham discontinuing its team and then commenting "Wait, so you can do that?" The Conan version changed the expression to fans (rather than team members) of a different team—the New York Jets—hearing the news and then commenting "wait, can you do that?"  These two differences were significant enough to warrant summary judgment in favor the Conan defendants due to an objective lack of virtual identity between the protectable elements of the allegedly infringing and allegedly infringed-upon joke.

While not exactly identical, the three remaining jokes were sufficiently objectively virtually identical as to create a triable issue of fact regarding whether a jury would have found the objective similarities to be virtually identical within the context of an entire joke. Furthermore, triable issues of fact existed regarding whether the Conan defendants' jokes were independently created and whether the Conan defendants willfully infringed Kaseberg's copyrights for the jokes. Thus, the Conan defendants were not entitled to summary judgment on the three remaining jokes.

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Lexis Advanced subscribers can access the full opinion at:   Kaseberg v. Conaco, LLC, 260 F. Supp. 3d 1229, 2017 U.S. Dist. LEXIS 72921, Copy. L. Rep. (CCH) P31,097, 2017 WL 1969300

Author:  Daniel Duncan, Lexis-Nexis Case Law Editor


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