Characters are everywhere. Take Stephen Colbert. He’s quite a character. Or is he? Mr. Colbert became famous on the “Colbert Report” as an over the top conservative commentator, effectively using satire to express his true liberal beliefs. But who was talking when Stephen Colbert expressed his trademark “truthiness,” Stephen Colbert the real person or Stephen Colbert the fictional character? That interesting legal question has become the subject of a very real dispute between Viacom and CBS, Colbert’s former and current employers, respectively.
In a recent episode of The Late Show with Stephen Colbert, Colbert mentioned that recent chatter between the two entertainment companies’ corporate lawyers suggesting that Colbert was infringing on Viacom’s intellectual property had forced him to retire the Stephen Colbert “character.” That’s right: Colbert was suggesting that Viacom believed “Stephen Colbert,” the satirical conservative commentator, belonged to them. Not to be outdone, Colbert lamented, “The lawyers have spoken–I cannot reasonably argue I own my face or name,” and then introduced his identical twin cousin, who exhibited the same trademark mannerism he displayed on Viacom’s “Colbert Report.
The laws at issue here are simple, but their interplay is actually quite complex (and quite debatable.)
Copyright law can protect fictional characters
The United States Copyright Act does protect fictional characters, with certain limitations. Any original work, or creative human expression, fixed in a tangible medium of expression and capable of human perception is immediately subject to copyright protection. Characters can qualify as this kind of expression assuming they are original. To test the originality of expressive conduct, the law recognizes something called “scènes à faire,” a French phrase that translates as “the scene that must be done.” As used by American courts, scènes à faire means literary material common to a particular kind of story, character, or other expressive material. For instance, if one were to create a spy, he might wear a suit, have some fancy gadgets, and carry a concealed firearm, and none of those things would be protectable, since they would be necessary to create any spy. However, give the spy the code name “007,” make him a part of British Intelligence, name him “James Bond,” and give him a complete back story, and now you may have elements subject to copyright protection.
So, as a general matter, the satirical conservative commentator “Stephen Colbert” could be subject to copyright protection, to the extent the character goes beyond standard tropes of the comedy bit.
Does an employer own the copyright in works created by its employee?
Of course, for Viacom to assert ownership, not only must there be something subject to copyright protection, but the right must vest in Viacom and not someone else. As a general rule, employers own (and are the legal authors of) any copyrightable material created by their employees within the scope of employment. The only exception to this rule would be if the employment contract stipulated something to the contrary, or if the relationship was actually not employment but an independent contractor relationship.
So, assuming nothing in writing to the contrary, Viacom would have ownership of any copyrightable material.
Can copyright trump the right of publicity?
The ultimate question here is whether Stephen Colbert’s right to his name and likeness gives him a reprieve from a copyright claim to the contrary. That is a difficult question to answer. A celebrity like Colbert would have the right to the exclusive use of his name, likeness, and portrait, what most or all U.S. states call his “right of publicity.” So where does Stephen Colbert the person begin (which Colbert would own) and “Stephen Colbert” the character begin?
In my view, because it’s difficult to distinguish between Stephen Colbert the real person and Stephen Colbert the fictional character, Viacom has a weak claim of copyright infringement against CBS and the “real” Stephen Colbert. Really, you can’t separate the two. Many comedians have built their careers around fake or exaggerated public personas–but really, isn’t that an indelible part of the person? And isn’t that really the person’s likeness?
Given this reality, and the suspect claim of being able to copyright a generally sarcastic, over-the-top conservative pundit, I think Stephen Colbert has every right to continue to bring his trademark “truthiness” to the Late Show.
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