Conan O'Brien's Defense Hits Snag in Tom Brady Joke Theft Claim

The late-night host has two fewer defenses available as a joke theft fight moves toward trial.
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Conan O'Brien

Conan O'Brien can't defend a claim alleging he stole a joke about New England Patriots quarterback Tom Brady by arguing the person accusing him of the theft tricked the government into granting his copyright.

Alex Kaseberg in July 2015 sued O'Brien over a series of jokes he says the late-night host used on his show. At the center of the current decision is a joke about Brady handing his 2015 Super Bowl MVP trophy over to the guy who won the game for the Patriots — the opposing team's coach. Kaseberg tweeted his version on Feb. 3, 2015, and later that night the host delivered a similar joke on his show.

Last year, U.S. District Court Judge Janis Sammartino denied a motion for summary judgment with regard to three of the jokes, including the one about Brady, and moved the matter toward trial — also finding that Kaseberg's quips were entitled to only "thin" protection and he would need to show that O'Brien's jokes were virtually identical, instead of substantially similar, in order to prevail on his claims.

Then the U.S. Copyright Office reconsidered its previous rejection of Kaseberg's copyright for the Brady joke, which prompted an argument from O'Brien's camp that Kaseberg had misled the feds by implying the court had ruled the joke merited copyright protection. 

The court on Thursday dismissed two of O'Brien's affirmative defenses, one arguing that Kaseberg had committed fraud on the copyright office and the other that he isn't entitled to relief because he withheld relevant documents during discovery and has "unclean hands." 

"Even if omission of the Court’s ultimate conclusion that the jokes were entitled only to thin copyright protection were misleading, however, the Court would have to conclude that there was no intent to defraud here," writes Sammartino. "It is undisputed that Plaintiff’s counsel attached a copy of the Court’s full Order to the letter to the Office. Had Plaintiff been attempting to pull a fast one on the Office by misrepresenting the Court’s Order, he would not have provided the Office with a means of verifying that deception."

While Sammartino believes the unclean hands defense could be available with regard to discovery conduct concealing fraud, because she finds Kaseberg's actions don't rise to the level of fraud, that defense is also dismissed.

Read Sammartino's full decision, below.