In copyright infringement action over jokes aired on late-night show Conan, district court holds that freelance writer’s two-sentence jokes allegedly copied on Conan are entitled only to “thin” copyright protection, and partially grants defendants’ motion for summary judgment.

Freelance comedy writer Robert Kaseberg brought a copyright infringement action against TBS, Time Warner, Conan O’Brien, O’Brien’s production company Conaco, and O’Brien’s head writer Mike Sweeney, alleging that five jokes Kaseberg posted on his blog and Twitter account between late 2014 and mid-2015 were copied and used on the late-night show Conan within days of his online postings. Kaseberg contacted the show’s writers to notify them that his jokes were being used soon after the initial jokes aired on Conan, offering to contribute as a freelancer. According to Kaseberg, that offer was initially ignored and later met with a hostile response. Kaseberg filed his copyright action soon thereafter.

Following discovery, defendants moved for summary judgment or, in the alternative, summary adjudication, based on the following arguments: (i) Kaseberg failed to timely produce evidence of valid applications for copyright registration of two of the jokes during discovery and thus lacked standing to sue with respect to those jokes; (ii) the defendants had created two of the jokes before Kaseberg posted them online, precluding a finding of copying; (iii) Kaseberg could not establish defendants’ access to (and thus copying of) his online jokes; (iv) regarding the applicable standard for actionable similarity, Kaseberg’s two-sentence jokes were entitled only to “thin” copyright protection and the Conan jokes were not “virtually identical” to his works, as required by Ninth Circuit precedent; (v) the defendants independently created their jokes; and (vi) Kaseberg could not establish willful infringement.

Addressing Kaseberg’s failure to timely produce registration applications, the court noted that Kaseberg did in fact submit copyright applications to the Copyright Office and that his failure to timely produce them was harmless. The court thus denied summary judgment on this basis. However, the court permitted defendants to reopen discovery regarding the registration applications to determine whether they suffered any fatal deficiencies that would deprive Kaseberg of standing to sue for copyright infringement.

With respect to defendants’ argument of prior creation of two of the jokes, the court granted defendants summary judgment as to one joke, which time-stamped emails showed to have been submitted by a Conan staff writer before Kaseberg posted his version of the joke online. As to the second joke, relating to the Washington Monument, the court rejected defendants’ prior creation argument that was based on a similar joke about the Washington Monument that had been aired on Conan a year earlier. The court reasoned that the prior joke did not rely on the same news story that served as the factual basis for the Washington Monument jokes that were at issue in the action.

Regarding the applicable similarity standard, the court agreed with defendants that plaintiff’s two-sentence jokes were entitled to “thin” copyright protection only and that, under applicable Ninth Circuit precedent, the parties’ respective jokes must be “virtually identical” for their similarities to be actionable. Noting that the similarity standards applicable to the jokes at issue presented a “novel issue,” the court explained that the protectable originality of the plaintiff’s jokes were “constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm.” Specifically, the court explained that each of the jokes began with a factual sentence, which facts are not protected by copyright. While the second-sentence punchlines of each joke are protected, the court concluded that they are entitled to thin protection only because of the limited number of variations in protectable expression that would “(1) be humorous (2) as applied to the facts articulated in each joke’s previous sentence and (3) provide mass appeal.”

Applying the “virtual identity” standard to the parties’ jokes, the court granted defendants summary judgment dismissal with respect to one of the jokes, which was based on a news story that the University of Alabama-Birmingham (UAB) had cancelled its football program. According to the punchline of Kaseberg’s version, the Oakland Raiders responded to the news with the question, “Wait, so you can do that?” The Conan version of the joke changed the team to the New York Jets, with a similar question coming from the team’s fans rather than the team itself. In ruling that these jokes were not virtually identical, the district court reasoned that a contrary ruling would preclude any humorous expression of a beleaguered sports team’s desire to also shut down its football operations upon hearing the news about UAB. However, the court denied summary judgment with respect to the remaining jokes under the “virtually identical” standard. Though noting that the jokes were not “exactly identical,” the court held that they bore sufficient similarities for a jury to conclude that they were “virtually identical” in their protectable content.

The court also denied defendants’ motion for summary judgment based on arguments of lack of access and independent creation. The court explained that it could not rule as a matter of law on the issue of access, among other things, because Kaseberg had contacted Conan writers about the alleged use of his jokes early in the relevant timeline such that defendants were aware of him and his online jokes. The court also relied on an expert report submitted by plaintiff indicating that, given the number of jokes allegedly used and their close time proximity, the probability of independent creation was “somewhere between .003% and .0075%.” The court thus held that there was a “reasonable possibility” that defendants had viewed plaintiff’s works prior to the airing of the allegedly infringing jokes on Conan. In rejecting defendants’ argument on the distinct but related issue of independent creation, the court explained that defendants’ evidence was based exclusively on writer declarations and their own premise sheets, which “implicates credibility determinations inappropriate for summary judgment.”

Finally, the court denied defendants summary adjudication on the issue of willful infringement, explaining that, because Kaseberg had reached out to the Conan writers, they may have been on notice of his material and thus acted knowingly and/or recklessly in using his jokes.