United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO.
Janis L. Sammartino, United States District Judge
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.)
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.
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.)
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.
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.)
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.
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.)
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.)
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.)
Tom Brady Joke:
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.)
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
Washington Monument Joke:
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.)
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.)
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.
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.)
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).
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.
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.
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,