Conan O’Brien is headed to a trial in May for allegedly stealing jokes from another comedian. On Thursday, his attorney brought a motion that aims to keep the public away from hearing sensitive financial information during the proceeding.
The copyright lawsuit comes from Alex Kaseberg, who survived the summary judgment round and will tell a jury that Conan writers took material about Caitlyn Jenner, Tom Brady and the Washington Monument from his social media feed and blog.
At trial, O’Brien’s production company will attempt to convince the jury it didn’t have access to Kaseberg’s jokes and that those jokes were independently created anyway. Plus, they hope to frame the jokes — e.g. “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll.” — as hardly too original in the first place.
“Kaseberg’s jokes are negligible and trivial variations on unprotectable ideas, preexisting works, or public domain works, such that they do not contain the requisite amount of creative input to qualify for copyright protection,” stated an earlier memorandum in the case.
Patty Glaser, attorney for O’Brien, hopes to bifurcate the trial so that the question of liability goes first. If a jury finds copyright infringement, then the question of damages would proceed.
“Defendants anticipate that Plaintiff will seek disgorgement of profits for at least the Tom Brady Joke and Washington Monument Joke,” writes Glaser, adding that one expert for Kaseberg has opined that revenues attributable to the jokes are in the mid-four figures range. “[T]he overall conclusion remains that we are not dealing with large damages figures. However, should Plaintiff attempt to elicit testimony from Conaco or Turner of gross revenues or budgets for the show, the large figures involved could irreversibly prejudice the jury in a unified trial.”
But beyond the alleged prejudicing of the jury, O’Brien’s side is concerned about the disclosure of “highly confidential” financial information underlying the damages calculation.
“Public dissemination of this financial information would cause considerable harm to the Corporate Defendants’ competitive standing by allowing their competitors to access sensitive, nonpublic information regarding revenues, costs, profitability, and advertisers,” continues the motion. “Accordingly, Defendants’ interest in maintaining the confidentiality of this nonpublic financial information would likely outweigh the common law right to public access to judicial proceedings, necessitating the closure of the courtroom and sealing of documents and transcripts.”
Glaser writes she expects nothing would need to be sealed from the liabilities portion of the trial “and damages could be tried in a consolidated sealed proceeding afterward.”
If the judge won’t bifurcate, she at least wants the courtroom closed when confidential financial information comes up.