By Clyde Shuman
A California federal judge has excluded two of plaintiff’s experts in the upcoming trial between television host Conan O’Brien and Robert Alexander Kaseberg, a freelance comedy writer who claims O’Brien stole his jokes. In Kaseberg v. Conaco LLC et al., case number 3:15-cv-01637 (S.D. Cal.), Kaseberg is accusing O’Brien, his show’s production company Conaco LLC, Turner Broadcasting System Inc., Time Warner Inc., and members of the show’s production staff of stealing jokes from Kaseberg’s social media accounts.
By way of background, Kaseberg, whose material has appeared in the New York Times and the Washington Post, sued O’Brien and the other defendants for copyright infringement in July 2015, alleging that O’Brien and the other defendants stole five of his jokes, which he filed copyright applications. Three of those jokes are now registered. Claims pertaining to two of the jokes at issue were dismissed in May 2017, but the court declined to dismiss the entire lawsuit, finding that although the jokes were entitled only to “thin protection,” it’s still possible for a jury to find O’Brien infringed those jokes.
The remaining jokes include a joke about Caitlyn Jenner, a joke about the Washington Monument and a joke New England Patriots quarterback Tom Brady and the Seattle Seahawks.
O’Brien argued those jokes were too unoriginal to have copyright protections, calling Kaseberg’s jokes, “negligible and trivial variations on protectable ideas, pre-existing works or public domain works.” In March, the parties submitted a joint witness list that included high-profiled comedians Patton Oswalt and Andy Richter, as well as the “Conan” head writer Michael Sweeney, executive producer Jeffrey Ross and several of the show’s writers
Kaseberg suggested two expert witnesses: David Barsky, a mathematics professor at California State University San Marcos, to testify on the patterns of the jokes at issue; and comedian Elayne Boosler, to testify on the similarity between the jokes. The court, in a near omnibus order covering several motions, held that testimony from the proposed experts is “neither necessary nor helpful.” According to the court:
Not only can such testimony easily be obtained from other parties — including plaintiff and Mr. O’Brien — but Ms. Boosler ultimately is not being offered to testify on the types of jokes at issue; rather, Ms. Boosler is being offered for her expertise concerning their substantial similarity.
Although Ms. Boosler is “undoubtedly an expert comedienne,” the court found that her conclusions lack analytical dissection. The court also excluded Barsky, who was to provide a statistical model for analyzing the likeness of the jokes at issue. The court held there was too great an analytical gap between the data he is using and the opinion he is offering.
The court also granted O’Brien’s request to close the courtroom during testimony about confidential financial information, but denied his request for separate trials on liability and damages issues.
Finally, the court ruled that the defendants could not present third-party evidence of other jokes similar to the ones at the center of the dispute published after Kaseberg’s blog posts. However, the defendants would be permitted to bring evidence of similar jokes that came before Kaseberg posted his.
