When he was on Comedy Central’s The Daily Show and The Colbert Report, Stephen Colbert committed to a character that has the same name as his. The character is a greenback conservative who keeps an American shield under his desk—a character who popularized the word “truthiness” (yes, it’s a real word).
When Colbert took over David Letterman’s job on CBS’s Late Night, he announced that he would retire the character and be himself.
The political climate being what it is, the real Stephen Colbert felt a need to revive the character just before the Republican National Convention. One would imagine that he had the right to use his own name and likeness.
Viacom, which owns Comedy Central, seems to disagree. Stephen Colbert was circumspect in describing the letter he received from their attorneys, only alluding to “corporate lawyers.” I’ve got nothing against corporate lawyers; sometimes I’m one of them myself. What I’m positing, though, is what I imagine that letter contained:
- Viacom probably alleged that it owns the copyright in the character, on the grounds that Colbert’s work on The Daily Show and The Colbert Report was as a Viacom employee, so everything he created belongs to Viacom as a work made for hire.
- So, Viacom would argue, reviving the character infringed on Viacom’s copyrights.
After mentioning on his current show the letter from lawyers from ”another television station,” Colbert presented his solution: Stephen Colbert would be replaced by his identical cousin of the same name who has identical political views.
My guess is that Colbert’s entertaining semantics are consistent with CBS’s likely response to Viacom: A character is not copyrightable if it is embodied in a living person who changes his text with every performance. Copyrights only exist in a “fixed means of expression.” The character of Mickey Mouse is a fixed illustration and is copyrightable. The character of Harry Potter, his author’s dialogue and the characteristics relative to him, are copyrightable. And the text uttered by Stephen Colbert when he is in or out of character is copyrightable.
But Stephen Colbert does not repeat the same text; each “episode” of his character is relatively unique; whether he’s improvising or working from a script, each new performance uses new words. So, his character, or any other actual person, is not “fixed” in any sense. He’s alive, moving, talking, and saying virtually nothing that he’s said while working for the prior television show.
Viacom can’t reasonably claim that Stephen Colbert’s face and name do not belong to him. Moreover, even if he called himself something else, those characteristics — rather than his words — are not something that are frozen in any medium of expression that can be tied down and owned by someone else. Viacom is probably trying to enjoin (that is, prevent the use of) a person, rather than a person’s words or other “fixed” expression, and that is not copyrightable, so the “work made for hire” doctrine does not apply.
If you’d like to join me in guessing the contents of Viacom’s and CBS’s dueling letters, feel free to contact me here.
