Conan O’Brien Faces Setback in Copyright Suit Over Tom Brady Joke

By Porter Wells

A writer who says Conan O’Brien’s late-night show unlawfully copied a joke about Patriots quarterback Tom Brady made a successful play in his federal lawsuit against O’Brien’s production company and its broadcasters.

Conaco LLC’s arguments that Robert Kaseberg lied in his applications to the copyright office and that Kaseberg wasn’t forthcoming during discovery were kicked out Nov. 15.

Kaseberg and O’Brien’s jokes both were premised on Brady, the quarterback for New England Patriots, giving his Super Bowl MVP truck to the person who earned the Patriots Super Bowl win: Seattle Seahawks coach Pete Carroll.

A total of five jokes are at issue in the copyright infringement case, but only “the Tom Brady joke” was at issue in the opinion from the U.S. District Court for the Southern District of California. The jokes were first posted on Kaseberg’s social media and then used on the “Conan” show without his permission, he says.

The judge first blocked Conaco’s defense that Kaseberg lied to the copyright office. Kaseberg didn’t grossly misstate the holding of the opinion in question, and his attorney “attached a copy of the Courts full Order to the letter to the office,” the court said. The court also dismissed Conaco’s alternative arguments that Kaseberg provided inaccurate information to the office and Conaco’s defense counsel.

Conaco’s “unclean hands” defense was based on the same facts as the fraud defense, so the court dismissed that one, too. Discovery misconduct doesn’t give rise to an affirmative defense, but rather a motion to compel or a motion for sanctions, the court said.

Ultimately, Kaseberg’s actions didn’t constitute fraud on the copyright office, so they didn’t amount to unclean hands, either, the court ruled.

The court granted Kaseberg’s motion for judgment on the pleadings and dismissed two of Conaco’s affirmative defenses.

J. Lorenzo Law represented Kaseberg. Lathrop Gage LLP and Glaser Weil Fink Howard Avchen & Shapiro LLP represented Conaco.

The case is Kaseberg v. Conaco, LLC, S.D. Cal., No. 15-CV-1637 JLS (DHB), 11/15/18.