By Ken Stone
Conan O’Brien is looking at a possible spring 2019 trial in the joke-theft case brought by a Carmel Valley comedy writer. The late-night host’s legal team lost a key ruling last week.
On Thursday, exactly a year after O’Brien’s lawyers accused Alex Kaseberg’s Carlsbad attorney of fraud in the case, San Diego federal Judge Janis Sammartino issued an order disagreeing about the U.S. Copyright Office being misled.
Kaseberg lawyer Jayson Lorenzo, whose apparent bumbling on a single joke’s copyright registration led to the fraud claim, said in a statement: “We are pleased that the court agreed with us and dismissed Mr. O’Brien’s defenses accusing Mr. Kaseberg of any fraudulent conduct.”Lorenzo called the Nov. 15, 2017, motion a failed attempt by O’Brien and his team to avoid facing liability for “appropriating Mr. Kaseberg’s material without his consent.”
“Just because someone is famous and has resources doesn’t mean you can make meritless claims of fraud,” Lorenzo said via email. “We fully expect Mr. Kaseberg’s rights will be vindicated at trial here shortly.”
“My best estimate would be sometime spring of next year,” Lorenzo said, “but [it] really depends on the court’s calendar.”
A lead lawyer for the former “Tonight Show” host didn’t respond to a request for comment.
But Sammartino, in her 18-page order swatting down the Hail Mary motion by the O’Brien lawyers, used colorful language in saying Kaseberg was not obligated to disclose to the Copyright Office that it earlier rejected a Tom Brady joke for copyright protection. (The joke eventually was granted protection.)
Although certain facts are mandated — such as the date and nation of the work’s publication — Sammartino wrote: “Plaintiff is not required … to provide the geographical coordinates for where he composed the work, what he ate for breakfast that morning, or what color underwear he was wearing at the time.”
Now 60, Robert Alexander “Alex” Kaseberg sued O’Brien, 55, in July 2015 after the red-headed comic allegedly stole four jokes off his Twitter feed or blog and used them later on air. Other defendants are Conaco, the show’s production company, Turner Broadcasting System, Time Warner Inc. and several writers for O’Brien.
Sammartino threw out one of the jokes, leaving three at issue — with a possible $450,000 penalty if a jury finds them stolen. Damages would boost the bite.
At issue in last week’s order was a joke Kaseberg had posted in the wake of the 2015 Super Bowl, when Seattle Seahawks coach Pete Carroll made a bad call at the end of the game with the New England Patriots.Kaseberg had tweeted: “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.”
O’Brien’s lawyers deny any joke was stolen, but they also tried to get the case thrown out over Kaseberg and Lorenzo’s “unclean hands,” alleging unethical conduct in the case.
The Copyright Office in March 2017 turned thumbs down on the Brady joke, saying it didn’t “contain a sufficient amount of original and creative literary authorship to support a copyright registration.”
But the following July, the Copyright Office Review Board reversed two previous rejections.
The way Lorenzo dealt with the office led to the O’Brien team calling foul.
“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 O’Brien lawyers said a year ago.
Last week, Sammartino conceded that lawyer Lorenzo had botched some registration efforts.
“Could Plaintiff’s counsel have been more forthright with the [Copyright] Office by clarifying in his letter that the Court concluded that the jokes were entitled only to thin [copyright] protection? Certainly,” she wrote. “Should Plaintiff’s counsel have included that in his letter? Perhaps.”
But she concluded that “there was no intent to defraud here” over the type of copyright protection the jokes would have.
(In a May 2017 order, Sammartino said Kaseberg’s jokes would have only “thin” copyright protection, meaning the “repeated” work has to be virtually identical to the original, as opposed to the typical “substantial similarities” standard in a copyright-infringement case.)
Sammartino threw out two of the O’Brien team’s legal arguments and ordered both sides to file a proposed schedule of pretrial hearing dates by Nov. 29.
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