ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(ECF No. 70)
Presently before the Court is Defendants’ Motion for Summary Judgment and/or Partial Summary Judgment or, in the Alternative, ' Summary 'Adjudication (“MSJ”), (ECF No. 70; see also ECF Nos. 88-91); Plaintiffs Response in Opposition re Motion for Summary Judgment (“Opp’n”), (ECF No. 97; see also ECF No. 101); and Defendants’ Reply in Support of Motion for Summary Judgment (“Reply"), (ECF No. 106; see also ECF Nos. 109-11). The Court held a hearing regarding the pending. Motion (“Hr’g Tr.”), (ECF No. 123), and ordered supplemental briefing on an issue that was for the first time raised in Defendants’ Opposition and Plaintiffs Reply. Those supplemental briefs are now also before the Court. (ECF Nos. 124,127.)
After considering the Parties.’ arguments and the law, the Court takes the matter under submission and GRANTS Defendants’ Motion for Summary Judgment as to the (1) Delta Joke and (2) UAB Joke, and GRANTS Defendants’ Motion for Summary Adjudication regarding the determination that Plaintiffs jokes are entitled to “thin” copyright protection. The Court otherwise DENIES Defendants' Motion for Summary Judgment.
BACKGROUND
Plaintiff Robert Alexander Kaseberg has been a freelance writer and comedy writer for over twenty years. (Kaseberg Decl. ¶ 2, ECF No. 97-3.) Although Plain
Plaintiff greatly enjoys late-night television1 talk shows and posts many “monologue” style jokes to his blog and twitter account. (Id. ¶¶ 5-6.) However, the laughter stopped in late 2014 and early 2015, at least for a spell, when Plaintiff began to notice similarities. between his posts and several of the jokes used in the late-night television show Conan’s monologues. (See id. ¶ 7.) After Plaintiff several times unsuccessfully reached out to Conan staff members he filed the instant suit for copyright infringement.
Defendants all share some connection to the Conan show. Conan O’Brien created and hosts Conan, (O’Brien Decl. ¶ 1, ECF No; 70-11), with the support of a staff of writers including Mike Sweeney, who served as Conan’s head writer during all times relevant to this lawsuit, (Sweeney Deck ¶¶ 1-2, ECF No. 70-5). Additionally, relevant to this Motion for Summary Judgment but not named as Defendants, Rob Kutner, Josh Comers, Brian Kiley, and Andres de Bouchet were writers and Danielle Weisberg was a writers’ assistant for Conan during periods at issue in this action. (ECF Nos. 70-4, 70-8, 70-9, 70-16; see ECF No. 101-4 at 8-9.) .
Plaintiff brought suit for Defendants’ alleged infringement of five jokes, spanning the time period from December 2, 2014 to June 9, 2015. .(First Am. Compl. ¶¶ 14-27, ECF No. 58.) These jokes, in order of date of alleged infringement, are (1) the “UAB Joke;” (2) the “Delta Joke;” (3) the “Tom Brady Joke;” (4) the Washington Monument Joke;” and (5) the “Jenner Joke.” Plaintiff reached out to several Conan writers during this same time period.
The UAB Joke: On December 2, 2014, Kaseberg posted ón his blog that “The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said; Wait, so yoú cando that?’ ” (Van Loon Deck Ex. 10, ECF No. 70-3 at 40.) The following day, O’Brien stated on Conan that there was “Big news in ■ sports. University of Ala-bamar-Birmingham has decided to discontinue its football team. Yeah, When they heard the news, New York -Jets fans said, Wait can you do that? It’s something you can do?’ ” (Id. Ex. 12, ECF No. 70-3 at 50.)
The Delta Joke: On January 14, 2015, at approximately 11:33 a.m., (Comers Deck Ex. 2, ECF No. 70-8 at 24), writer Comers submitted a monologue joke for that evening’s Conan episode that stated ‘Yesterday, a Delta flight from Cleveland to New York took off with just 2 passengers. Yet somehow, they spent the whole flight fighting over the armrest.” (Van Loon Deck Ex. 6, ECF No. 70-3 at 26.) Later that afternoon, at 4:14 p.m., Plaintiff posted on his blog that “A Delta flight this week took off from- Cleveland to New York with just two passengers. And they fought over control of the armrest the entire flight.” (Id. Ex. 3, ECF No. 70-3 at 14.) Sometime over the next several hours, O’Brien performed a version of the joke in his Conan monologue. (See id. Ex. 6, ECF No. 70-3 at 26.)
‘ Two days after the Delta Joke aired, Plaintiff tweeted Defendant Sweeney saying'Plaintiff was “95% sure [he] had a joke from [his] blog used on the show. I’m not upset, [but] would like the opportunity to
The Tom Brady Joke: On February 3, 2015, Plaintiff posted on Twitter at 8:49 a.m. and on his blog at 9:02 a.m. that “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.” (Van Loon Deck Ex. 13, ECF No. 70-3 at 55.) Later that day, at approximately 3:14 p.m., (MSJ 6), writer Kiley submitted a joke for the following night’s Conan monologue, which O’Brien later performed, stating “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 Sea-hawks coach Pete Carroll.” (Van Loon Deck Ex. 14, ECF No. 70-3 at 57.)'
Two days after the Tom Brady Joke aired, Plaintiff tweeted writer de Bouchet saying “Brady joke was on my blog on Feb. 3 and on the monologue on Feb. 4. Any chance I can send jokes on my own as a freelancer?” (Van Loon Deck Ex. 20, ECF No. 70-3 at 85.) De Bouchet brought this tweet to Defendant Sweeney’s attention, but did not respond to Plaintiff. (Lorenzo Deck Ex. 3, at 57:4-25, ECF No. 101-4 at 8.) Sometime after de Bouchet’s and Sweeney’s conversation, Sweeney spoke to other writers on the show about Plaintiff. (Id. at 58:8-24, 60:17-25, ECF No. 101-4 at 9,11.) And sometime between the airing of the Tom Brady and Washington Monument jokes, Plaintiff called Defendant Sweeney and left a message, although Plaintiff received no response. (Van Loon Deck Ex. 19, ECF No. 70-3 at 80-81.)
The Washington Monument Joke: On February 17, 2015, Plaintiff posted on Twitter at 7:21 a.m. and on his blog at 11:20 a.m. that “The Washington Monument is ten inches shorter than previously thought. You know the winter has been cold when a monument suffers from shrinkage.” (Van Loon Deck Ex. 7, ECF No. 70-3 at 30.) Later that day, at approximately 1:23 p.m., (MSJ 5), writer Kiley submitted a joke for that night’s Conan monologue, which O’Brien later performed, stating “Yesterday surveyors[ ] announced that the Washington Monument is ten inches shorter than what’s been previously recorded. Yeah. Of course, the monument is blaming the shrinkage on the cold weather. Penis joke.” (Id. Ex. 9, ECF No. 70-3 at 35.)
The day after the Washington Monument Joke aired, Plaintiff again called Defendant Sweeney. (Van Loon Deck Ex. 19, ECF No. 70-3 at 81-82.) And although Plaintiff was finally able to reach him, Plaintiff characterized the resulting conversation as an “agonizing” one, where Sweeney “angrily and loudly” denied any suggestion that “his writers would have anything to do with [Plaintiffs] pathetic blog and it’s [sic] author, [Plaintiff], a no-name failure.” (Id.) After the call, Plaintiff tweeted Sweeney saying “Thanks for taking my calk Last thing I wanted was to sound accusing. If there is any way I can contribute jokes, let me know.” (Sweeney Deck Ex. 2, ECF No. 70-5 at 14.)
Several weeks later, on March 11, 2015, Plaintiffs attorney sent a letter to Defendant Conaco, LLC regarding the jokes. (Kaseberg Deck ¶21, ECF No. 97-3 at 5.) Correspondence continued for the next several months with no resolution. (Id.)
The Jenner Joke: On June 9, 2015, Plaintiff posted on his blog at 11:05 a.m. and on Twitter at 11:31 a.m. that “Three towns, two in Texas, one in Tennessee, have streets named after Bruce Jenner and now they have to consider changing
A little over one month later, on July 22, 2015, Plaintiff filed his initial Complaint against Defendants for Copyright Infringement. (ECF No. 1.) Defendants filed Answers, (ECF Nos. 3, 11), and the case proceeded to discovery. Plaintiff recently amended his Complaint, (ECF No. 58); Defendants filed an Answer, (ECF No. 58), and subsequently Moved for Summary Judgment, or Partial Summary Judgment and/or Summary Adjudication, (ECF No. 70).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), a party may move for summary judgment as to a claim or defense or part of a claim or defense. Summary judgment is appropriate where the Court is satisfied that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex,
Once the moving party satisfies this initial burden, the nonmoving party must identify specific facts showing that there is a genuine dispute for trial. Celotex,
Defendants move for summary judgment on five grounds:
(1) Kaseberg failed to produce valid registrations for two of his allegedly infringed works, and thus, Kaseberg lacks standing to assert infringement claims related to those works; (2) the Conan Defendants created two of their allegedly infringing works prior to Kaseberg’s initial publication, and thus, could not have infringed Kaseberg’s works as a matter, of law; (3) Kaseberg lacks any evidence that Defendants directly copied his allegedly infringed works, and cannot establish that Defendants accessed his allegedly infringed works; (4) Kase-.berg’s allegedly infringed works are entitled to, at best, “thin” copyright protection, and he cannot establish that the allegedly infringing works are “virtually identical” to his works; and (5) the Conan Defendants independently created their allegedly infringing works.
(Defs.’ Notice of Mot. 1, ECF No. 70.) In the .alternative, Defendants request summary adjudication on the following issues:
■[ (1) ] All of Kaseberg’s allegedly infringed works at issue in this lawsuit are entitled to “thin” copyright protection, and therefore the proper standard of comparison for infringement in this case is “virtually identical;” and [ (2) ] Kase-berg failed to establish that Defendants willfully infringed any copyrights asserted in.this action, and therefore.any and all claims of willful copyright infringement raised by Kaseberg must be dismissed; .
(M at 1-2.) The Court addresses each generally in turn, beginning with the issues presented for summary judgment, but collapsing ■ into one inquiry Defendants’ moving, points (3) and (4) for summary judgment and moving point (1) for summary adjudication, (infra Part III),
I. Registration of the Tom Brady and UAB Jokes
Defendants first move for summary judgment regarding the Tom Brady and UAB jokes, arguing that Plaintiff lacks standing to maintain an infringement action as to those jokes. This is because “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration- of the copyright claim has been made[,]” 17 U.S.C. § 411(a), and at the time Defendants filed their Motion for Summary Judgment Plaintiff- had not produced any registration-documents for either the Tom Brady Joke or the UAB Joke. (MSJ 8-9.) Plaintiff counters by attaching to his Opposition applications for each joke, (Lorenzo Decl Exs. 7, 8, ECF No. 97-2 at ¾9-35), and noting , that his Amended Complaint dearly indicates that “applications for each of the” relevant jokes were either- filed or “pending with the Copyright Office.” (Am. Compl. ¶26, ECF No. 58.) Defendants respond that Plaintiff never produced “copyright applications for the Tom Brady or UAB [j jokes qntil February 8, 2017 — four months after the close of discovery” — and that therefore Plaintiff should not now be able to rely on those documents. (Reply 1-2 (emphasis original).) Plaintiff responds that the late production was merely “inadvertent[ ]” and harmless because the application “was in fact filed and [Defendants] were on notice of the filing.” '(PL’s Resps. to Defs.’ Evid. Obj, 4-6, ECF No. 114 at 4-6.) Finally, pursuant’ to the Court’s request at oral argument,, (Hr’g Tr. 53:10-54:25), Plaintiff and Defendants both submitted supplemental briefing on whether Plaintiff’s failure to timely disclose the applications should be outcome-determinative. The Court concludes it should not be.
Federal Rule of Civil Procedure 26(a) requires a party to provide all other
In the present case, there is no question that Plaintiff failed to timely produce the required disclosures; Defendants specifically propounded' discovery in the form of “all DOCUMENTS relating to the application and/or registration of the JOKES AT ISSUE with the United States Copyright Office.” (Pl.’s Resp. to Conaco, LLC’s First Set of Reqs. For Produc. of Docs, and Things (“Appl. Req.”) 9, ECF No. 73 at 88; see generally Pl.’s Supp. Br., ECF No. 127.) And Plaintiff concedes that such failure was not substantially justified. (See generally, e.g., Pl.’s Supp.- Br. (nowhere arguing that failure to produce was substantially justified).) Accordingly, the only question is whether Plaintiffs failure is “harmless” within the meaning of Rule 37(c). The Court ultimately concludes that it is.
Defendants make valid arguments as to why they were prejudiced by Plaintiffs failure to produce the relevant applications and corresponding documents. For example, there are several potentially disposi-tive grounds on which Defendants could have conducted discovery. (Defs.’ Supp. Br. 7-8, ECF No. 124 (noting, e.g., that an incomplete application does not confer standing; that an application with multiple works including one, previously registered work is invalid as a whole; and that fraud on the Copyright Office can invalidate an application).) However, Plaintiff is correct that here Defendants are not prejudiced in the most meaningful sense — Plaintiff did, in fact, submit applications which in turn confer Plaintiff with standing for the relevant jokes under Cosmetic Ideas, Inc. v. IAC/InteractiveCorp.,
But Defendants are correct that they should be permitted to reopen discovery regarding the relevant applications, associated documents, and communications from the Copyright Office. Further, if Defendants discover fatal deficiencies in Plaintiffs applications then Defendants should also again be permitted to move for Summary Judgment on those discrete grounds. And although the Ninth Circuit has held that “modifications to the court’s and the parties’ schedules supports a finding that' the failure to disclose was not harmless[,]” Hoffman v. Constr. Protective Servs., Inc.,
Given the foregoing, the Court concludes that Plaintiffs failure to disclose the relevant applications and additional materials regarding the Tom Brady and UAB jokes is harmless insofar as it relates to Plaintiffs standing to bring suit. Accordingly, Defendants’ Motion for Summary Judgment on this ground is DENIED. However, Plaintiff and Defendants SHALL meet and confer regarding these issues and, if possible, submit to the Court a Joint Motion to reopen discovery and modify the operative pre-trial schedule.
II. Prior Creation of the Delta and Washington Monument Jokes
Defendants move for summary judgment regarding both the Delta and Washington Monument jokes because Defendants created those jokes prior to Plaintiff posting his version of those jokes. (MSJ 10.) Because the factual circumstances underlying each joke are distinct, the Court first addresses the Delta Joke and then turns to the Washington Monument Joke.
Regarding the Delta Joke, Defendants’ record evidence demonstrates that Conan writer Josh Comers submitted the Delta Joke via email on January 14, 2015 at either 11:33 or 11:32 a.m. (Comers Decl. Ex. 2, ECF No. 70-8 at 24; Hayes Decl. Ex. 1, ECF No. 70-12 at 7.) Nearly five hours later, at 4:14 p.m., Plaintiff posted his version of the joke. (Van Loon Decl. Ex. 23, 5, ECF No. 70-3 at 95.) Despite this strong evidence of prior creation, Plaintiff argues that several “alleged ‘coincidences’ do not add up [such that] there exists a triable issue of fact as to whether Defendants did in fact write Joke #2 first.” (Opp’n 9.) The Court disagrees.
Plaintiff points to four particular “coincidences” that establish a genuine issue of material fact regarding prior creation of the Delta Joke: (1) Conan’s “final meeting where jokes are finalized go all the way up until ‘showtime[,]’ ” i.e., 4:30 p.m.; (2) Conan used a similar joke on the previous day’s show, and Plaintiff has “never seen Conan use premises like that on back to back days[;]” (3) the two copies of the Comers email before the Court have varying timestamps (11:33 a.m. versus 11:32 a.m.) and one email is truncated; and (4) Conan’s writer’s assistant testified that January 14, 2015 “was the weird day.” (Opp’n 7-9.) But none of these is sufficient to inject a genuine issue of material fact into the question whether Defendants created their version of the Delta Joke prior to Plaintiffs version. Specifically, if the email is true, then the exact hour of Co
Regarding the Washington Monument Joke, Defendants again argue that they created the Washington Monument Joke prior to Plaintiffs first posting of his version of the joke. However, unlike with the Delta Joke, Defendants here argue that Conan aired a similar joke “which had the same concept and punchline as [Plaintiffs] joke” approximately a year prior to Plaintiffs first publication. (MSJ 10.) Plaintiff argues that there is a genuine dispute as to whether the year-old Conan joke was, in fact, “the same joke” as Plaintiffs, given that the year-old joke was (1) in video, rather than written, form and (2) not based on the news story that was the foundation of both Plaintiffs allegedly infringed-upon joke and Defendants’ allegedly infringing joke. The Court agrees with Plaintiff.
As an initial matter, as to the allegedly infringing and infringed-upon jokes, there is no dispute that Plaintiff posted his version of the Washington Monument Joke prior to Defendants’ use or alleged creation of their version. And, although Defendants contend that Plaintiff “does not mention a study in his joke[,]” (Reply 3), both jokes unquestionably reference the same study, (see MSJ 5 (noting Plaintiffs version says “The Washington Monument is ten inches shorter than previously thought” and Defendants’ version says “Yesterday surveyors[] announced that the Washington Monument is ten inches shorter than what’s been previously recorded”) (emphasis added)). By contrast, Defendants’ year-old joke simply references a cold front hitting Washington D.C. before showing a purported “time-lapse ... of the cold front hitting the Washington Monument” in which the Monument shrank over time. {Id. at 5-6.) Accordingly, the common threads between all of the jokes are merely the ideas that (1) the Washington Monument looks like a phallus and (2) the Monument may therefore respond to cold weather by shrinking. However, ideas are not copyrightable. E.g., Harper & Row Publishers, Inc. v. Nation Enters.,
III. Direct Copying; Access; and the Relevant Standard of Similarity
Defendants assert that Plaintiff lacks any evidence of direct copying, (MSJ 10), something Plaintiff does not dispute, (see Opp’n 7 (“Kaseberg Need Not Present Evidence of Direct Copying”)). Accordingly, the only question is whether Plaintiff raises a genuine issue of fact regarding (A) Defendants’ access to Plaintiffs allegedly infringed-upon jokes and (B) the similarity between Plaintiffs allegedly infringed-upon jokes and Defendants’ allegédly infringing jokes. E.g., Rice v. Fox Broad. Co.,
A. Access
To show access, a plaintiff generally must show that a defendant had a “reasonable opportunity” to view a plaintiffs work. Three Boys Music Corp. v. Bolton,
Defendants argue, not just that access proven via chain of events must give rise to more than a bare possibility, but that proof of such access must be “ ‘significant, affirmative, and probative.’ ” (MSJ 11 (quoting Bernal,
Defendants again argue that the majority of Plaintiffs evidence presented in opposition was not available, and that, “[hjaving taken a firm position as to his access evidence, - which directly impacted Defendants’ discovery efforts, [Plaintiff] cannot now ambush Defendants with new facts, theories, and evidence for the first time in his Opposition.” (Reply 5.) However, the Court need not use this evidence to find a genuine issue of material fact. Plaintiff supplies an expert report
This probability evidence is in turn bolstered by the fact that Kaseberg tweeted writer Sweeney after he saw Conan perform allegedly infringing joke number 2,
Specifically, Defendants at the hearing contested the access point primarily on the grounds that access to a person is insufficient to create a genuine dispute of material fact regarding access to a specific work. (Hr’g Tr. 28:24-31:24; 33:15-34:3.) However, the cases Defendants cite in support either dealt with companies where individuals were not part of the same department, e.g., Bernal,
Finally, although Defendants at the hearing further argued that the expert report was targeted towards independent creation only, and therefore is inapposite regarding any inference of an access theory, (id. at 47:22-49:1), as explained infra Part IV, independent creation and access are interrelated. Of course, the expert report alone would be insufficient to prove access because it merely undercuts any theory of independent creation without advancing any specific theory of access. However, as detailed above, the expert report in this case is bolstered by the fact that there were several writers on notice of Plaintiff, his allegations, and the online fora containing his jokes; and at least several of the writers were together discussing those matters. Accordingly, the expert report here bolsters .this additional evidence in a meaningful way.
Although this is a unique case and a close call, taking the foregoing in concert, and drawing all reasonable inferences in favor of Plaintiff, the Court cannot at this time say that as a matter of law Defendants did not have access to Plaintiffs jokes. Therefore, the Court DENIES Defendants’ Motion for Summary Judgment on these grounds.
B. Similarity
Unlike access, the Parties do not agree regarding the appropriate standard for evaluating the level of similarity between the works here at issue. This disagreement mostly concerns the amount of protection Plaintiffs works should be afforded. Defendants argue Plaintiffs work is comprised almost wholly of unprotecta-ble elements and therefore is entitled to only “thin” copyright protection, (MSJ 13-20); Plaintiff disagrees, (Opp’n 15-23). Although largely a novel question, the Court agrees with Defendants.
“To determine whether two works are substantially similar, a two-part analysis — an extrinsic test and an intrinsic tes1> — is applied.” Rice,
“[T]he extrinsic test is an objective measure of the ‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.’ ” Id. However, “[because only those elements of a work that are protectable and used without the author’s permission can be compared when it comes to the ultimate question of illicit copying, we use analytic dissection to determine the scope of copyright protection before works are considered ‘as a whole.’ ” Apple Computer, Inc. v. Microsoft Corp.,
(1) The plaintiff must identify the source(s) of the alleged similarity between his work and the defendant’s work.
(2) Using analytic dissection, and, if necessary, expert testimony, the court must determine whether any of the allegedly similar features are protected by copyright. [U]nprotectable ideas must be separated from potentially pro-tectable expression; to that expression, the court must then apply the relevantlimiting doctrines in the context of the particular medium involved, through the eyes of the ordinary consumer of that product.
(3) Having dissected the alleged similarities and considered the range of possible expression, the court must define the scope of the plaintiffs copyright— that is, decide whether the work is entitled to “broad” or “thin” protection. Depending on the degree of protection, the court must set the appropriate standard for a subjective comparison of the works to determine whether, as a whole, they are sufficiently similar to support a finding'of illicit copying.
Id. at 1443 (emphasis removed). “Where a copyrighted work is composed largely of ‘unprotectable’ elements, or elements ‘limited’ by ‘merger,’ ‘scenes a faire,’ and/or other limiting doctrines, it receives a ‘thin’ rather than a ‘broad’ scope of protection.” Idema v. Dreamworks, Inc.,
Plaintiff in j;he present ease points out that “[t]he cases Defendants have cited do not directly deal with jokes[,]” (Opp’n 17); but neither do Plaintiffs cited cases, (see id; at 17-20). However, the copyrighted items in Defendants’ cited cases and the two-line jokes here at issue do share the same issue-controlling' feature: an extremely limited amount of protectable content. For instance-, in Skyy Spirits a photographer brought suit against the Skyy Corporation for infringement of his photographs for a Skyy advertising campaign which placed “[t]he [Skyy Vodka] bottle ... in front of a plain white or yellow backdrop, with back lighting[;]” “illuminated from the left (from the viewers^] perspective), such that the right side of the bottle is slightly shadowed[;]” and where “[t]he angle from which the photos were taken appeared] to be perpendicular to the side of the bottle, with the label centered, such that the viewer has a ‘straight on’ perspective.” Ets-Hokin v. Skyy Spirits, Inc.,
In the present case, there is little doubt that the jokes at issue merit copyright protection. See, e.g., Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,
In sum, where, on the protection “continuum a particular work falls ... is a call that must be made case by case.” Apple Computer,
Given that Plaintiffs works are entitled to only thin protection, the Court must determine whether there is a genuine dispute of material fact regarding whether Defendants’ allegedly infringing jokes are “virtually identical” to Plaintiffs.
On the other hand, Plaintiffs and Conan’s other jokes objectively share sufficient protectable similarities to preclude summary judgment.
The Jenner Joke focuses on Bruce Jenner’s then-recent sex change and the resulting effect on towns with streets named “Bruce Jenner.” Again, these facts are not copyrightable. The protectable expression is instead Plaintiffs observation that one fictional Bruce Jenner street would “have to change from a Cul-De-Sac to a Cul-De-Sackless.” (Van Loon Deck Ex. 15, ECF No. 70-3 at 63.) Conan’s joke takes the same tack, noting that: “If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack.” (Id. Ex 17, ECF No. 70-3 at 72.) Although Conan changes the punchline from “sackless” to “no-sack,” the framing is identical: the change happens to the observer no matter what, and that change is the removal of the sac from “cul-de-sac.” Although these jokes are not exactly identical, that is not the test. There is a genuine issue of material fact whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.
The Washington Monument Joke focuses on the Washington Monument having been found to be ten inches shorter than previously established. The protecta-ble expression lies in Plaintiffs observation that the Washington Monument could “suffer[] from shrinkage[,]” (id. Ex. 7, ECF No. 70-3 at 30), implying that the Monument is therefore an actual phallus. And although the Defendants are correct that the Conan joke differs insofar as it anthro-pomorphizes the Monument — “Of course, the monument’s blaming the shrinkage on the cold weather[,]” (id. Ex. 9, ECF No. 70-3 at 35) — the fundamental expression regarding the Monument, in fact, being a phallus remains the same. As previously stated, while not exactly identical, the jokes are sufficiently objectively virtually identical to create a triable issue of fact regarding whether a jury would find these objective similarities to be virtually identical within the context of the entire joke.
Finally, the Brady Joke focuses on Tom Brady’s statement after winning Super Bowl XLIX that he wanted “to give his MVP truck to the man who won the game for the Patriots.” (Id. Ex. 13, ECF No. 70-3 at 55.) Plaintiffs protectable expression is his implication that a fictionalized Tom Brady would therefore give his truck to the coach of the opposing team, Pete Carroll. And although the Conan joke takes an active stance — “So Brady’s giving his truck to Seahawks coach Pete Carroll[,]” (Id. Ex. 14, ECF No. 70-3 at 57)— the fundamental expression is the same,
Given the foregoing, the Court GRANTS summary judgment regarding the UAB Joke, but DENIES summary judgment as to the remaining Jenner, Washington Monument, and Brady jokes.
IV. Independent Creation
Defendants next argue that they are entitled to summary judgment on the discrete ground that the “evidence presented in this case firmly establishes that the Conan Defendants’ jokes were independently created.” (MSJ 20.) Plaintiff responds that “courts should caution against deciding the issue of independent creation at summary judgment[,]” especially in cases such as this one where the evidence establishing independent creation is solely “the self-interested testimony of those on the defense side.... ” (Opp’n 23 (quoting 3 Nimmer § 12.11[D][1] n.99.5).) Defendants reply that “[cjourts in the Ninth Circuit can, and do, grant summary judgment based on independent creation.” (Reply 8-10.) The Court agrees with Plaintiff.
As an initial matter, it is true that
[t]he law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted. Stated another way, [i]f A produces identically the same work as B, by independent thought, in good faith, without hearing, or seeing, B’s work, both A and B would be entitled to individual copyrights in their individual works.
Granite Music Corp. v. United Artists Corp.,
In the present case, the Delta Joke is the only joke implicating this principle of interrelatedness — email records indisputably prove that Defendants created a version of the allegedly infringing Delta Joke prior to Plaintiffs creation of his allegedly infringed-upon version. This directly (and successfully) attacks Plaintiffs theory of access, and therefore summary judgment as to the Delta Joke is proper. See, e.g., Christian v. Mattel, Inc.,
V. Willful Infringement
Defendants’ final argument is that they are entitled to summary adjudication regarding whether Defendants’ willfully infringed Plaintiff’s copyrights. (MSJ 25.) Plaintiff responds that a genuine issue of material exists because Plaintiff tweeted to and spoke with Mike Sweeney (a member of Conan’s writing staff) such that “there is evidence that Defendants knew about [Plaintiff] at least after Joke # 2.” (Opp’n 24-25.) Defendants reply that" Sweeney did not write any of the allegedly infringing jokes, and that record evidence demonstrates that Sweeney only told the writers about Plaintiff “after the jokes at issue were already published.” (Reply 10 (emphasis original).) The Court agrees with Plaintiff.
“‘[T]o prove “willfulness” under the Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions were the result of “reckless disregard” for, or “willful blindness” to, the copyright holder’s
In the present case,' Mike Sweeney explicitly noted that after his “first communication” with Plaintiff, (Sweeney Dep. 55:1— 3, ECF No. 101-4 at 6), “another writer came to me [ (Sweeney]) and said, ‘Hey, this guy, Alex Kaseberg, tweeted at me about saying we did one of his jokes[,]’ ” (id. at 57:4-13). Sweeney continued that some time in that “early stage, yeah, I talked to a group of writers in a meeting.” (Id. at 60:20-24.) These statements are in turn bolstered by writer Comers’ statement that he learned of Plaintiffs allegations from Mr. Sweeney prior to the litigation, and then - later heard that “maybe there was more communication, like he [ (Plaintiff) ] ... maybe ..'. reached- out again- to Mike about it.” (Comers Dep. 45:21 — 46:11, ECF No. 106-2 at 64-66.) And although Defendants point to writers Ki-ley’s and Kutner’s depositions as indicating that no writer knew of Plaintiff until after the jokes at issue were already published, (Kiley Dep. 62:1-2 (“Mike Sweeney mentioned. ... at a meeting that someone was suing the show.”), ECF No. 106-2 at 77; Kutner Dep. 54:1-7 (explaining that meeting with Mike Sweeney where he heard of allegations “had to be after” the lawsuit was filed), ECF No. 106-2 at 57), the most that can be said regarding these depositions is that they add to the general confusion among the writing staff regarding the timeframe during which they learned about Plaintiff and his allegations. This does nothing to dispel, but. instead confirms, a genuine issue of material fact regarding whether Defendants may have willfully infringed Plaintiffs works — the writers may well have been on notice as to Plaintiff and his Twitter or blog posts almost immediately following Conan’s performance of the- second allegedly infringing joke. If Defendants did, in fact, subsequently copy Plaintiffs’ other jokes, then there is a genuine fact as to the willfulness of Defendants’ so doing. See Washington Shoe Co.,
CONCLUSION
Given the foregoing, the Court GRANTS Defendants’ Motion for-Num-mary Judgment for failure to establish a genuine issue of material fact regarding (1) the. UAB Joke and (2) the Delta Joke. The Court DENIES Defendants’ Motion for Summary Judgment regarding (1) the Washington Monument Joke; (2) the Jenner Joke; and (3) the Tom Brady Joke. Additionally, the Court GRANTS Defendants’ Motion for Summary Adjudication that the jokes are only entitled to “thin” protection, but DENIES Defendants’ Motion for- Summary Adjudication as to a
IT IS SO ORDERED.
Notes
. Further, the full excerpt from Ms. Weis-berg's (Conan’s writer’s assistant) deposition reads: "A: Oh, this was the weird day. I’m sorry, there was no Approved Monologue Batch 1 on this day. Q: Why? A: Because Conan’s assistant was away....” (Weisberg Dep. 110:4-7, ECF No. 101-8 at 8.) The only reasonable reading of this full excerpt is that the day was "weird” because the show’s usual routine was broken. This has nothing to do with the veracity of the emails before the Court.
. In an attachment to their Reply Memorandum, Defendants separately move to strike this expert report due to the expert (1) relying only on Plaintiffs' provided instances of joke overlap; (2) not considering any examples of overlap where Defendants created the joke first; (3) not considering any examples of overlap outside of the May-November time period; and (4) not considering overlap relating to jokes that never made it-on the Conan show. (Defs.’ Evi. Obj. and Request to Strike Portions of the Deck of Jason M. Lorenzo 9-11, ECF No, 106-5.) However, such an attack is more appropriately presented in a formal motion, rather than a few paragraphs of an attachment to a Reply in Support of a Motion for Summary Judgment. Further, ‘‘[sjhaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” City of Pomona v. SQM N. Am. Corp.,
. Plaintiff puts forth another seemingly strong argument,' that although Defendants argue that none of the writers "had ever heard of Kaseberg, visited ICaseberg’s blog or twitter pagé, or seen any of Kaseberg’s jokes at issue prior to the alleged infringement[,]” (MSJ 20), writer Comers ‘ -'admitted in deposition - that he was irritated and frustrated that someone like Kaseberg would be accusing them of stealing, and even referred to Kaseberg as a ‘non-professional, middle-aged wanna-be writer.' ” (Pl.'s Undisputed Facts ¶ 161, ECF No 101-1 at 68.) Plaintiff is correct that this would directly refute Defendants' assertion that none of the writers had ever even heard of Plaintiff. (Opp’n 4.) But just one page earlier in the deposition, Comers testified he "talked to Mr. Sweeney, and ... learned” from Sweeney “that [Plaintiff] wasn’t some young kid,” but “was 50 years old, and ... ‘ had claimed to be a seasoned writer.” (Comers Dep. 51:5-11.) This surrounding context completely undercuts this aspect of Plaintiff's access-based argument,
. At oral argument, Plaintiff argued that only a jury may apply the "virtually identical” standard. (Hr’g Tr. 36:24-38:6.) However, this ignores that in applying the extrinsic test the Court must determine whether the works objectively share "articulable similarities....” Metcalf,
. Defendants in their Reply note that to the extent Plaintiff argues "that O’Brien's ad-libbed language in delivering his jokes should be disregarded in the comparison^]” to do so would be incorrect because the "Complaint claims infringement by Conan's performances.” (Reply 8 (emphasis added).) However, the Court need not reach this issue because the surviving jokes in this section have only minor performance additions that would not here alter the Court’s conclusion, (MSJ 5 (Washington Monument Joke additions: "Yeah” and "Penis joke”); 6 (Brady Joke addition: Tom Brady wanting to give MVP truck away is "nice”); 7 (no Jenner Joke additions).)