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Kaseberg v. Conaco, LLC

United States District Court, S.D. California

May 9, 2017

ROBERT ALEXANDER KASEBERG, Plaintiff,
v.
CONACO, LLC; TURNER BROADCASTING SYSTEM; TIME WARNER, INC.; CONAN O'BRIEN; JEFF ROSS; MIKE SWEENEY; DOES 1-10, inclusive, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 70)

          Hon. Janis L. Sammartino, United States District Judge

         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); Plaintiff's 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 Plaintiff's 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 Plaintiff's 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 Plaintiff has never been staffed or credited as a writer on any television show, he has written articles and jokes that have appeared in publications such as The Chicago Tribune, The New York Times, The Washington Post, The Los Angeles Times, Time magazine, and Sports Illustrated, among others. (Id. ¶ 3.) Additionally, Plaintiff has worked with an independent production company for the last twenty years through which he has had over one-thousand jokes used by Jay Leno. (Id. ¶ 4.)

         Plaintiff greatly enjoys late-night television 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 Decl. ¶¶ 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 on his blog that “The University of Alabama-Birmingham is shutting down its football program. To which the Oakland Raiders said; ‘Wait, so you can do that?' ” (Van Loon Decl. 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 Alabama-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 Decl. 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 Decl. 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 contribute jokes.” (Sweeney Decl. Ex. 2, ECF No. 70- 5 at 14.) Sweeney received the tweet, but elected not to respond. (Lorenzo Decl. Ex. 3, at 55:1-14, 56:10-15, ECF No. 101-4 at 6-7.)

         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 Decl. 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 Seahawks coach Pete Carroll.” (Van Loon Decl. 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 Decl. 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 Decl. 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 Decl. 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 Decl. 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 Decl. 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 [Plaintiff's] pathetic blog and it's [sic] author, [Plaintiff], a no-name failure.” (Id.) After the call, Plaintiff tweeted Sweeney saying “Thanks for taking my call. Last thing I wanted was to sound accusing. If there is any way I can contribute jokes, let me know.” (Sweeney Decl. Ex. 2, ECF No. 70-5 at 14.)

         Several weeks later, on March 11, 2015, Plaintiff's attorney sent a letter to Defendant Conaco, LLC regarding the jokes. (Kaseberg Decl. ¶ 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 them to Caitlyn. And one will have to change from a Cul-De-Sac to a Cul-De-Sackless.” (Van Loon Decl. Ex. 15, ECF No. 70-3 at 63.) Later that day, at approximately 1:34 p.m., (MSJ 7), writer Kutner submitted a joke for that night's Conan monologue, which O'Brien later performed, stating “Some cities that have streets named after Bruce Jenner are trying to change the streets' names to Caitlyn Jenner. If you live on Bruce Jenner cul-de-sac it will now be cul-de-no-sack.” (Van Loon Decl. Ex. 17, ECF No. 70-3 at 72.)

         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, 477 U.S. 317, 322 (1986). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When the Court considers the evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

         The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' ” that show an absence of dispute regarding a material fact. Id. When a party seeks summary judgment as to an element for which it bears the burden of proof, “it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)).

         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, 477 U.S. at 324. This requires “more than simply show[ing] that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts' ” that would allow a reasonable fact finder to return a verdict for the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 ...


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