The cast list for the upcoming trial between TBS late-night talk show host Conan O’Brien and comedy writer Alex Kaseberg just got shorter as District Court Judge Janis Sammartino dropped the curtain on Kaseberg’s two expert witnesses. Kaseberg intended to team up with David Barsky, a mathematics professor at California State University San Marcos, and comedian Elayne Boosler to prove that O’Brien stole Kaseberg’s jokes about Tom Brady, Caitlyn Jenner, and the Washington Monument. Kaseberg filed suit against O’Brien for copyright infringement in July of 2015, and the two have since been embroiled in litigation as previously reported.
Barsky was retained to testify to the pattern of Kaseberg’s jokes which Kaseberg alleged O’Brien, and/or his writing team, stole, and to determine the probability that similarities could exist between the content of O’Brien’s monologues and Kaseberg’s jokes if there was no infringement. Boosler was retained to testify to the substantial similarities between Kaseberg’s jokes and O’Brien’s monologues.
O’Brien, clearly not amused, filed motions in limine to exclude Barsky and Boosler on the grounds that their testimony is neither reliable nor relevant. Sammartino agreed. The court found that Barsky’s testimony as to the pattern of Kaseberg’s jokes was simply not relevant to determining whether O’Brien or his team appropriated them. Further, Sammartino expressed concern with Barsky developing a statistical methodology solely for purposes of litigation and basing his opinions, in part, on the two additional jokes that O’Brien previously knocked out on summary judgment. The court also found Barsky’s opinions were based on the assumption that Kasberg published approximately the same number of jokes each day, which is contrary to Kaseberg’s statement in deposition that the number “varies.”
As for Boosler, the court excluded her testimony because it found that although she is undoubtedly a professional comedian, she “performs none of the analytical dissection that is the hallmark of the extrinsic test.” The extrinsic test examines whether, objectively, the jokes are substantially similar after considering each joke as a whole and in full context. The court determined that Boosler would essentially be telling the jury what decision to reach rather than aid their administration of the extrinsic test to determine for themselves if the jokes are sufficiently alike.
Now without an expert in his arsenal to testify to the issues of substantial similarity and infringement, it is unclear whether Kaseberg may be more open to settlement as trial approaches. But as it stands, the gloves come off on May 28, 2019.