Conan And The Vanishing Copyright Trial

Will this stolen joke case actually go to trial, or is a settlement in the works?

Conan O’Brien (Photo by Jamie McCarthy/Getty Images)

Copyright infringement trials are rare birds. Conducting such a proceeding is very expensive. And extremely risky. And to do them right you need skilled trial attorneys who know the rules, both written and unwritten, and can present a case with enough flair to keep the jury engaged. As the last generation of lawyers, many of which who regularly tried cases, ages out of practice, the experienced trial attorney is becoming even more rare than the jury trial itself.

Verily, many copyright attorneys go through their entire careers without once darkening the doorway of a courtroom with a jury empaneled inside. Cases are filed, discovery is completed, and cases are resolved on motion or through settlement. So the opportunity to try a case to a jury, the most revered of the legal skills, is presenting itself less and less. Court records show that less than 1 percent of all copyright cases that are filed actually proceed through trial and to verdict. That is a vanishingly small percentage and an even more extreme reflection of the “disappearing trial” phenomenon that has swept the nation and is either a tragedy or a welcome efficiency depending on whom you query.

If you were to query me, you’d find I stand with the majority, those wringing their hands, or at least languidly shaking their heads while gazing navalward, at the fact that the jury trial is now an exceedingly uncommon occurrence. Those who lament the decline of the jury trial mourn the disinclination to embrace a cherished and historic right, one important enough to be guaranteed through, and enshrined in, the Seventh Amendment. The result has been that many skilled and lauded copyright litigators in today’s landscape are more facile with a summary judgment motion than a jury instruction.

Which is a shame. The very best experiences of my own career have come during the more than a dozen jury trials that I have been lucky enough to present. Connecting with the jury, reacting to the numerous variables and unforeseen events that tend to arise during trial, and putting on a cogent and persuasive trial presentation are priceless experiences and invaluable to an attorney’s growth. So any time we see a copyright infringement case that looks like it will actually be tried to a jury, it is a cause for excitement.

In that regard it looks like we are in for a real treat later this spring, when Robert Kaseberg, a writer and comedian, will face off against late-night host Conan O’Brien and his writing team in a copyright infringement jury trial in San Diego. The case, which we first discussed way back in the hazy days of 2017, includes allegations that the Conan crew stole jokes that Kaseberg had published on Twitter. The trial on Kaseberg’s claims of infringement will provide a fantastic lens for examining the the breadth of protection for jokes and the application of the Ninth Circuit’s sometimes slippery “extrinsic and intrinsic” test for substantial similarity.

Judge Janis L. Sammartino, who will preside over the big event, recently cleared the pre-trial underbrush by deciding a number of procedural issues. Her stage-setting included the rejection of a last-second motion to amend the pleadings and an attempt by the defense to bifurcate the trial proceedings.

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And, in a notable pair of decisions, she also granted motions in limine seeking to bar the testimony of two of Kaseberg’s experts. One of these experts, David Barsky, Ph.D., was being proffered “to examine the pattern of jokes published by the Plaintiff that appeared in Conan monologues, and specifically whether this pattern suggested that this might be a chance occurrence[.]” This expert’s testimony did not meet the threshold for admission because it was based too heavily on unsupported assumptions and “there [wa]s simply too great an analytical gap between the data and the opinion proffered.” So, Dr. Barsky, who was to testify that there was no real chance that the similarities between the jokes could be coincidental, will not be addressing the jury next month, when the case is set to be tried.

Nor will Elayne Boosler, who Kaseberg hoped to present to testify as to the substantial similarity between the bits at issue. It was contemplated that she would offer “her opinion that the jokes are the same objectively, based on the fact [they have] the same premise and same punchline.” But Boosler, who is the first female to have her own one-hour cable comedy special, was rejected as an expert witness because her opinion did not properly address the Ninth Circuit’s extrinsic/intrinsic test for similarity and offered conclusions without adequate analysis.

The witness list now appears set and the trial documents are in the hands of the court. All that appears to remain are a few outstanding housekeeping decisions and then the main event, trial by jury, which is currently set to commence on May 28, 2019. Hopefully, the parties resist the urge to limit risk and exposure by settling the case — an in-person settlement conference has been set for a couple of weeks before trial — and try this engrossing dispute to a jury of their peers.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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