(Screenshot from Stephen Colbert's The Word segment on the Late Show with Stephen Colbert, YouTube.)
Stephen Colbert became famous for playing a fictional version of himself on the Colbert Report in a bit called "The Word" (you can watch the last video from "The Word" uploaded to YouTube here.)
Now that he's moved from Comedy Central to CBS, he's started to introduce that same character to Late Show audiences, much to Comedy Central's displeasure. They have even sent a letter demanding that Colbert stop performing this character on the Late Show.
Networks fiercely protect their intellectual property for all sorts of reasons. Coypright laws are meant to protect against other people using protectable characters without permission.
David Letterman also made fun of NBC’s minor protests when he joined Late Show in 1993 — but he ended up with his “Top Ten” just the same. So, can someone own the rights to a character you create that is actually yourself?
Jesse Saivar, partner at Greenberg Glusker Fields Claman & Machtinger sat down with Inside Counsel to discuss this controversial topic and help us answer these questions.
“I can’t develop a book or show around an alien who wears a red cape and can fly and has super human strength and a secret identity without people immediately thinking my book or show is about Superman,” he explained. “The laws are meant to prevent that and so the owner of a character copyright can sue someone for infringement just like they could if a third party copied their script.”
But a character must be sufficiently delineated in order for the creator to have enforceable rights, according to Saivar. The question here is whether the “Stephen Colbert” from the Colbert Report is sufficiently delineated to be easily separable and separately recognizable from Stephen Colbert the performer.
“Based on his show, I think we can assume he’s not conservative so I guess any time he acted conservative you could argue he’s back in character. But without changing his name or his appearance, that’s a pretty difficult line to draw which is exactly why Comedy Central has an uphill battle here,” he said.
From Saivar’s perspective, this is a very unique situation. We have a character that was essentially created for the Colbert Report. You could classify it as a character because he was not playing himself - he posed as a humorously arch-conservative talking head.
His character was intended to be a parody the likes of Sean Hannity, Rush Limbaugh and Glenn Beck and served to poke fun at both right wing positions and the people on TV who espouse them. However, he did it under his own name, not a fictional character name. And, he didn’t do much in terms of dressing in any particular way to delineate this character from Stephen Colbert the person.
“Character copyrights are fairly complex and fact specific,” explained Saivar. “In the end, the question is whether a fictional character is ‘sufficiently delineated’ to be protectable on his/her own apart from the story the character is a part of. Any ‘stock’ characters are free for anyone to use, so the question here is whether this Stephen Colbert character he portrayed on the Colbert Report was sufficiently delineated and not a stock character.”
This question is solely around the character Stephen Colbert from the show and not around some of the specific things he did on the show. So, according to Saivar, Comedy Central would know the scripts he used and likely would be found to own any specific bits and the names of those bits.
Comedy Central will likely argue that his character was sufficiently delineated and therefore, a character they own, just as they may own characters on other shows they own.
“However, there are several things working against them,” Saivar said. “If you were to have to describe his character, you’d probably only be able to say ‘humorously arrogant and conservative.’ Is that distinct enough to qualify as a protectable character? Are there other pre-existing characters like that in entertainment? Probably.”
In addition, he is using his personal name, and not some made up character’s name, and doesn’t have any sort of visual cues to separate the character from himself. They may have an easier time arguing copyright protection in the character if he wore one specific outfit on each show that was easily identifiable. Instead, he simply wore a suit, just like he does for the Late Show.
“These things make it harder for Comedy Central to argue that his ‘character’ was sufficiently delineated,” he explained.