Stephen Colbert, known for his political satire and witty social commentary, has inadvertently run into some intellectual property issues regarding his persona. Formerly of “The Colbert Report” which was the intellectual property right of Viacom, Colbert is now the host of “The Late Show” on CBS. Viacom insists that the Stephen Colbert persona and image no longer be used, as it is their intellectual property. Colbert aimed to create an alternate persona by identifying himself as “Stephen Colbert,” a twin identity to his well-known and celebrated image. This is not likely to hold much weight in court if a lawsuit is initiated.
The “Character” of Things
There are many different angles to this issue. For one, there is an obvious copyright implication. In the copyright world, stock characters generally are not given protection. Under the Copyright Act, before something is given copyright protection, the work must meet a certain level of creativity. A stock character, such as a cliché action hero is not given protection because it is generic and lacks the threshold creativity to warrant protection.
However, in this case, the Stephen Colbert persona is quite unique and is associated with the satirist himself and not a particular genre or other individuals in the same field. Of course, this is a matter that would be decided by the jury. If the jury associate the Stephen Colbert persona with Stephen Colbert himself and not that genre, then Viacom has a strong claim of intellectual property over the persona.
When it comes to a character, such as Bart Simpson or Batman, the question of whether there is copyright over that particular character depends heavily on the medium. Copyright law treats literary characters quite differently from visual characters. The standard is higher for a literary character. A literary character such as Tom Sawyer will be protected as a copyright work only if that character is essential to the story being told. In other words, if a character is merely an afterthought, then that character will not receive copyright protection. On the other hand, a visual character does not require the same standard.
For example, the xenomorph from the movie Alien will only have copyright over it if it is delineated; in other words, if it is fleshed out enough to be identified on its own. This is a lower standard and is easily met. Here, as Colbert is a visual character, it only has to meet this lesser standard. It goes without saying that the Colbert persona is a character with enough depth and substance to stand on its own, and as a visual character nonetheless, Viacom will be able to meet this standard.
Hence, Viacom might have a good shot at claiming copyright over the original persona developed on “The Colbert Report.” At the same time, Colbert might be able to create his own persona, a la this twin cousin. If the original persona and this doppelgänger of sorts can be viewed as separate concepts by everyday viewers, then Colbert can claim that it is a different character altogether. This will be difficult to do of course as both characters seem quite similar and not enough distinction is between them to set them apart.
Another side to all of this is the work-for-hire doctrine. Under copyright law, if a work has been done on behalf of someone else, the rightful owner of the copyright is the person who requested for the work to be done. In other words, the author or creator of the work doesn’t actually have ownership rights; instead it is the person who commissioned the work. If Viacom can establish that they in fact commissioned the work, which is likely the case as they funded the show and put Colbert on the seat, then they will have copyright over the persona.
Aside from copyright implications, there are potential trademark issues here as well. Can the Colbert persona be viewed as brand imaging? Is there consumer confusion? There can be a potential trademark to the Colbert persona if it is viewed as a consumer brand. Trademark is easier to establish than copyright, as it is rather easy to place a trademark on something. If Viacom can establish that the Colbert persona is a trademark and that consumers identify with that persona when investing their time or money on it, then it will be deemed a trademark that belongs to them.
Change of Hands
Licensing is a big part of this kerfuffle. If licensing terms are clearly laid out, then it will become quite clear who owns the intellectual property rights to the Colbert persona. Even if Colbert decides to invent an alternate persona, there might be restrictions to this that are expressly stated in the license. Ultimately, this is something that will be addressed if the issue is taken to court.