By Ken Stone
A San Diego joke-writer won’t meet late-night comic Conan O’Brien in San Diego federal court this week as once expected.Judge Janis Sammartino last month canceled the Aug. 10 trial-scheduling conference to give both sides more time to sort out whether one of three jokes at issue is properly copyrighted.
The “Tom Brady Joke” – allegedly stolen from Robert Alex Kaseberg of Carmel Valley by O’Brien and his writers — is holding up the lawsuit filed in July 2015. It could potentially cost O’Brien and co-defendants $450,000 plus damages.
On Feb. 3, 2015, Kaseberg posted this joke 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’s monologue on TBS included: “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.”
But the U.S. Copyright Office in March 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.”
Kaseberg’s Carlsbad-based lawyer, Jayson Lorenzo, persisted, however. And on July 21, he heard from the Copyright Office Review Board. It reversed two previous rejections.
“The board finds that the work exhibits copyrightable authorship and thus may be registered,” wrote Catherine Rowland, a senior adviser in the copyright office.
In late May, Erica Van Loon, lead lawyer for O’Brien, told Times of San Diego that if an August trial date were set she would “absolutely” be prepared to go to trial.On Wednesday, Van Loon said: “If the court allows us to reopen discovery on the Tom Brady joke, we will take further discovery and potentially bring further motions. Once that’s complete, the pre-trial deadlines will be rescheduled.”
On Aug. 4, following a July 28 phone conference with lawyers from both sides, U.S. Magistrate Judge Louisa Porter gave O’Brien’s side until this Friday to make its case for re-deposing Lorenzo and arguing other issues.
O’Brien’s lawyers are especially interested in how Kaseberg’s lawyer, Lorenzo, submitted the Brady joke for copyright protection. Between March 10, 2015, and June 28, 2017, Lorenzo applied for copyright protection several times — sometimes as part of a package.
But in a comedy of crossed messages, Lorenzo this past June withdrew the application — only to learn six days later that the copyright office had granted the application for three jokes at once.
Then, on June 28, Lorenzo sent a letter to the copyright office asking the copyright office to cancel registration for the Tom Brady Joke, according to Judge Porter in a July 25 order setting up the “Discovery Conference” three days later.
Now both sides have to explain themselves.
“No later than August 18, 2017, [Kaseberg] shall file a response to defendants’ brief,” Porter said. “Plaintiff’s response shall be no longer than five pages.”
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