TBS, 'Conan' show fail to prove fraud in copyright case over Tom Brady joke told on air, court rules

By Charmaine Little | Nov 23, 2018

SAN DIEGO — A joke on the Conan late-night talk ended up in court after a man sued the show for allegedly stealing one of his jokes; recently, the U.S. District Court for the Southern District of California granted his motion for summary judgement amid the show and network's fraud claims.

Robert Alexander Kaseberg claimed he owned a Tom Brady joke and that it was told on the popular talk show without his permission. He filed his initial lawsuit against Turner Broadcasting System (TBS), Conan O’Brien and others in July 2015, and filed an application to register the joke to be trademarked the following September.

While Kaseberg’s trademark application languished, the defendants filed a motion for summary judgement arguing that Kaseberg had failed to prove he had registered the joke and that he was only owed thin copyright protection.

The defendants then filed affirmative defenses claiming fraud due to Kaseberg’s alleged misconduct with the copyright office and even the court. Kaseberg then filed his motion for summary judgement on the defenses, and on Nov. 15 the court agreed with him.


U.S. District Court Judge Janis Lynn Sammartino  

The defendants had argued that Kaseberg failed to inform tell them that the copyright office had rejected his application in September 2015 and a follow-up in August 2016. They also said Kaseberg didn’t inform them about the second refusal until they revealed their plan to sue for fraud. They added that Kaseberg did not tell the copyright office about the Tom Brady joke being on Twitter and a blog, and that he mischaracterized the court’s holding in a summary judgment order.

“The court is not persuaded that fraud on the copyright office encompasses only statements contained in the application form itself, and not those contained in subsequent registration materials, including requests for reconsideration and other correspondence with the [copyright] office,” the court stated.

Regarding inaccuracies in the September 2015 application, the court determined that the plaintiff was correct when he said there could not be a ruling for thin or broad protection without the court first determining if the material in question warranted copyright protection at all.

For the August 2016 application, the court ruled that although there were supposed inaccuracies in the document, it was not enough to bring about fraud claims. The defendants were unable to show any policy or regulation that Kaseberg had a responsibility to inform the copyright office about any previous publication of the Tom Brady joke, such as when the joke was posted to Twitter, the court ruling added.

In response to the allegations that Kaseberg continuously and intentionally withheld relevant documents concerning whether his copyright status for the joke was even valid, the court said an unclean hands defense could not be made on misconduct in the discovery phase.

U.S. District Judge Janis L. Sammartino ruled for the court and granted Kaseberg’s motion for judgement on the pleadings and dismissed the fraud claims on the copyright office.

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Turner Broadcasting System, Inc. U.S. District Court for the Southern District of California

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