By Ken Stone
Lawyer Jayson Lorenzo lied to win copyright approval of a twice-rejected joke, says a Nov. 15 filing in San Diego federal court.
The accusation comes in a request that federal Judge Janis Sammartino allow O’Brien’s attorneys to file a new response, or “answer,” to the original lawsuit of July 2015.Kaseberg accuses O’Brien and his TBS show writers of stealing jokes off his Twitter feed and using them on air, slightly changed. In May, Sammartino excluded two jokes from the lawsuit.
A third — the “Tom Brady Joke” — could be junked as well, if O’Brien’s lawyers have their way. That would reduce the potential copyright violation penalty to $300,000 from $450,000. Two jokes would remain for a jury to decide.
(On Feb. 3, 2015, Kaseberg posted on Twitter: “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 next night, O’Brien said in his monologue: “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 Jan. 11, 2018, O’Brien’s lawyers will appear with Kaseberg’s attorney — Lorenzo of Carlsbad — in downtown federal court to debate the request for a new defendant response. (The 54-year-old former “Tonight Show” host won’t be present, though.)
Erica Van Loon, a lawyer for O’Brien, said her team is “adding additional defenses that say plaintiff is barred from asserting copyright infringement based on their misconduct in this case and before the Copyright Office.”
She also told Times of San Diego: “I’m sure plaintiff will make all sorts of arguments, but the law is clear that you don’t get to profit when your own hands are dirty, hence the unclean-hands defense.”
Lorenzo, the lawyer for joke-writer Kaseberg, did not respond to a request for comment.Van Loon says in her latest filing that Lorenzo “misrepresented the scope of the Summary Judgment Order” when Lorenzo said the court ruled “there is little doubt that the jokes at issue merit copyright protection.”
According to the filing, when Lorenzo appealed the rejections in a letter he sent to copyright officials dated May 30, 2017, he misstated a court order.
Van Loon said Lorenzo concluded the letter with what she called a “somewhat confusing request”: “In light of the Court’s [sic] that my client’s material has met the originality requirements for copyright protection, and the previous joke registrations, my client respectfully requests that the work listed above be allowed to register.”
But O’Brien’s lawyers say: “Whether the Tom Brady joke ‘met the originality requirements for copyright protection’ was not ‘actually decided’ by the court in its Summary Judgment Order.”
The Nov. 15 filing adds: “It appears likely that the Copyright Office would not have granted a registration for the Tom Brady joke but for Kaseberg’s misclassification of the court’s dicta as a ruling.”
However, the Copyright Office’s July 17 acceptance letter to Lorenzo doesn’t explicitly mention the court action.
“After reviewing the application, deposit copy, and relevant correspondence, along with the arguments in the second request for reconsideration, the [Copyright Office Review] Board finds that the work exhibits copyrightable authorship and thus may be registered,” said the letter from the board’s Catherine Rowland.On Friday, a spokeswoman for the Copyright Office said: “We generally don’t like to get involved in private litigation.”
But the spokeswoman — Whitney Levandusky, the Copyright Office’s attorney-adviser for public information and education — said one can, under certain circumstances, reapply for a copyright if at first refused.
Still, Levandusky said: “If we have refused the registration on grounds that it doesn’t meet the minimum degree of creativity or it doesn’t meet the originality requirement, … that’s a final decision on our part.”
She called that “a final administrative action subject to appeal. And there we have a general policy that we will not review that claim again.”
Lorenzo apparently won a rare victory in that appeal process.
But Lorenzo also broke judicial rules by not playing fair, O’Brien’s legal team says.
“Kaseberg’s misleading discovery responses and withholding of documents prejudiced defendants’ discovery efforts, summary judgment briefing, and trial preparation — all the while causing defendants to waste time and money on irrelevant issues,” the filing says.
If Judge Sammartino in January accepts the new O’Brien response, when might a trial be set?
“Not sure,” Van Loon said via email. “First she will set a pretrial conference and the trial date will be set at that conference. It really depends on how busy the court’s schedule is right now.”
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