Kaseberg v. Conaco, LLC
260 F. Supp. 3d 1229
S.D. Cal.2017Background
- Plaintiff Robert A. Kaseberg is a freelance/comedy writer who posted short topical jokes on his blog and Twitter; he alleges Conan show used five of his jokes (Dec 2014–Jun 2015).
- Defendants are Conan O’Brien and Conaco with staff writers; five contested jokes: UAB, Delta, Tom Brady, Washington Monument, and Jenner.
- Plaintiff contacted Conan writers and tweeted head writer Mike Sweeney after noticing overlaps; communications and depositions show writers became aware of Plaintiff during the relevant period.
- Defendants moved for summary judgment on multiple grounds: lack of registrations (standing), prior creation, lack of access/direct copying, thin protection requiring "virtual identity," independent creation, and lack of willfulness.
- Court held: grants summary judgment for Defendants on the Delta and UAB jokes; denies summary judgment as to the Brady, Washington Monument, and Jenner jokes; adjudicated that Plaintiff’s jokes receive only "thin" copyright protection; willfulness remains a triable issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (registrations for Tom Brady & UAB) | Kaseberg filed or had pending copyright applications; late production was inadvertent and harmless | No timely production; Rule 37(c) sanctions should bar late evidence and defeat standing | Denied summary judgment; late-disclosed applications deemed harmless but parties may reopen discovery about them |
| Prior creation (Delta & Washington Monument) | Kaseberg: timing and quirks create triable issues about who created jokes first | Defendants: email/premise sheets show prior creation (esp. Delta) | Delta: granted for Defendants (email shows creation before Kaseberg’s post). Washington Monument: denied (older Conan sketch not the same as year‑old prior creation) |
| Access & similarity (substantial similarity under "thin" protection) | Access inferable from clustering improbability (expert stats), tweets to writers, and writers’ awareness; jokes are similar enough | No direct copying; limited protectable expression means only "thin" protection and requires virtual identity | Court: jokes entitled to thin protection; access is a triable question (evidence creates reasonable possibility); UAB not virtually identical (summary judgment for Defs); Jenner, Brady, Washington Monument: triable issues remain |
| Independent creation & willfulness | Kaseberg: defenses rest on self-serving writer declarations; credibility issues preclude summary judgment | Defendants: writers’ contemporaneous records and declarations show independent creation; Sweeney’s testimony undermines willfulness claim | Independent creation: summary judgment granted only for Delta (prior creation). Willfulness: denied summary adjudication — material dispute exists whether writers were on notice and any later copying was willful |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s initial burden on summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (evidence of nonmovant must be believed; standard for genuine dispute)
- Three Boys Music Corp. v. Bolton, 212 F.3d 477 (access requires reasonable, not bare, possibility)
- Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (analytic dissection; thin protection and "virtual identity" standard)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (originality standard; facts not copyrightable)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (idea/expression dichotomy)
- Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (Rule 37(c) sanctions framework)