Conan O’Brien is coming to San Diego later this year — but not just for his annual Spreckles Theatre shows during Comic-Con.
The late-night host will be in downtown federal court, along with several writers, trying to persuade a jury that he didn’t steal three jokes from a Carmel Valley comedy scribe.
Veteran funnyman Robert Alex Kaseberg, who says he supplied Jay Leno more than a thousand quips, sued O’Brien and others in July 2015, originally alleging they used four of his jokes on air after first appearing on his blog and Twitter feed.
A year later, Kaseberg and his Carlsbad-based attorney, Jayson Lorenzo, added a fifth joke to the mix — making the possible damages as much as $750,000.
But federal Judge Janis Sammartino on May 6 excluded two jokes from the case after an April 6 hearing — lowering the maximum hit to $450,000.
(An O’Brien joke about a two-passenger Delta flight with the pair fighting over an armrest was found to have been emailed more than four hours before Kaseberg posted his version. A joke about University of Alabama-Birmingham shutting down its football program was punted from the case because Kaseberg’s punch line was: “Oakland Raiders said, ‘Wait, so you can do that?’ while the O’Brien clincher was: “New York Jets fans said, ‘Wait can you do that?’”)
The final pretrial conference is set for Aug. 10, but O’Brien’s lead lawyer won’t predict when the trial will start.
Erica Van Loon, the lawyer, told Times of San Diego on Friday that if an August date were set, “we will be prepared to go to trial on this case. Absolutely.” She said both sides failed to resolve differences in settlement talks.
Sammartino’s court schedule will likely determine when the trial starts, Van Loon said in a phone interview. It might reach into the fall.
But despite the fact that Team O’Brien failed to get the judge to drop all jokes from the case, Van Loon suggests the road to victory will be tougher for Kaseberg.
In her 28-page order, Sammartino said Kaseberg’s jokes would have only “thin” copyright protection.
That “basically means the works have to be virtually identical to each other” to claim copyright violation, Van Loon said. “So that’s higher than the typical ‘substantial similarities’ standard in a copyright-infringement case. So she raised the standard up.”
Kaseberg and Lorenzo, his attorney, didn’t respond to a request for comment.
But Kaseberg was the subject of some derisive comments during depositions.
Josh Comers — one of five O’Brien writers during the period in question — “admitted in deposition that he was irritated and frustrated that someone like Kaseberg would be accusing them of stealing, and even referred to Kaseberg as a ‘non-professional, middle-aged wanna-be writer,’” Sammartino noted.
A jury will hear these Kaseberg jokes:
- “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.”
- “The Washington Monument is 10 inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.”
- And: “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.”
According to court records, O’Brien delivered these jokes:
- “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.”
- “Yesterday surveyors announced that the Washington Monument is 10 inches shorter than what’s been previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather. Penis joke.”
- And: “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.”
Expert testimony (supplied by Lorenzo) said the chances of two comedy writers independently coming up with jokes as similar as these in the short time frame involved were “somewhere between 0.003 percent and .0075 percent,” court documents say.
Sammartino also allowed for O’Brien’s side to have more time for discovery — getting information from the other side.
Van Loon said Kaseberg currently doesn’t have a valid copyright registration for the Tom Brady joke. She says they applied, and the U.S. Copyright Office rejected it.
“So they applied a second time and what they did — which was a little underhanded, in my opinion — [is] they coupled the Tom Brady joke with several other jokes,” Van Loon said. “And they did this submission with multiple jokes on it, and that application is still pending with the copyright office.”
She says O’Brien’s team didn’t know that the copyright office hadn’t registered that Brady joke until the April 6 summary judgment hearing.
“And so the judge said: ‘Look, you guys can take more discovery as to that joke,’” said Van Loon, a Century City-based attorney assisted by Nick Huskins and Rex Hwang.
Defendants besides the 54-year-old O’Brien, his production company Conaco LLC and his writers are Time Warner Inc. and Turner Broadcasting System, where the nightly show has aired since 2010.
With such powerhouse clients, who is paying Van Loon and her defense team?
“I don’t think I can really discuss that,” she said, citing client confidentiality.