A jury trial has been set for May 2019 against Conan O’Brien over claims brought by comedian Robert Alexander Kaseberg (“Kaseberg”) which allege Conan, his show’s production company Conaco LLC, Turner Broadcasting Systems, Inc., Time Warner Inc., and two members of the show’s production staff (the “Conan Defendants”) stole five of his jokes which were protected by copyright applications Kaseberg filed in 2015 and 2016.

In July of 2015, Kaseberg filed a lawsuit alleging that Conan Defendants of stole five jokes from him. Then in May of 2017, U.S. District Judge Janis L. Sammartino tossed claims based upon two of those jokes and agreed with Conan Defendants team that the jokes at issue were only entitled to “thin protection,” while letting Kaseberg proceed with his infringement claims for the three other jokes. The surviving jokes include one about how streets that were named Bruce Jenner prior to Caitlyn Jenner’s transition could now be called “cul-de-sackless”- as Kaseberg put it- or “cul-de-no-sack,” in Conan’s words; a joke about the Washington Monument experiencing “shrinkage” in cold weather; as well as one about news that New England quarterback Tom Brady wanted to give the truck he won as 2015 Super Bowl MVP in defeating the Seattle Seahawks to “the man who won the game for the Patriots,” referring to the coach of the opposing team.

Conan argued in his pre-trial memorandum that Kaseberg’s jokes are “too unoriginal” to enjoy copyright protection. He and his team criticized Kaseberg’s jokes- which included “riffs” (a comedic term for improvisations) about Caitlyn Jenner and jabs at a football team- as “negligible and trivial variations on unprotectable ideas, pre-existing works, or public domain works.” The memo also stated, “it would be virtually impossible for any writer, much less three separate writers, to have stumbled onto Kaseberg’s jokes for source material, especially given the limited reach of his posts and the nonexistent awareness of his platforms.”

Kaseberg, an experienced comedy writer whose material has appeared in The New York Times and the Washington Post, filed his own pretrial memorandum telling the court that the Conan Defendants had lifted several of his jokes that he had posted on Twitter and on his blog and ignored messages from him in which he alerted the show to the similarities.

Commentary: This is a fascinating case which will be the subject of a panel presentation by the California Society of Entertainment Lawyers (“CSEL”) this spring. Mr. Lowe is currently president of that organization.

The defendants are represented by Patricia L. Glaser, Thomas P. Burke Jr. and Justin Thiele of Glaser Weil Fink Howard Avchen & Shapiro LLP.

Kaseberg is represented by Jayson M. Lorenzo of J. Lorenzo Law.

The case is Kaseberg v. Conaco LLC et al, case number 3:15-cv-01637, in the U.S. District Court for the Southern District of California.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

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