Why Stephen Colbert can't be Stephen Colbert anymore

"Late Night" host Stephen Colbert told a jeering crowd that they would never see pompous newscaster character "Stephen Colbert" again, as the character is the intellectual property of another company, presumably Colbert's former employer, Comedy Central. 

Scott Kowalchyk/CBS via AP
Stephen Colbert, host of "The Late Show with Stephen Colbert," appears during a broadcast in New York. Lawyers representing his old show company complained to CBS after Colbert revived the character he played under his own name on “The Colbert Report," a clueless, full-of-himself cable news host.

Talk show host and comedian Stephen Colbert was met with boos this week when he announced that his famous “Stephen Colbert” character, an arrogant cable news host featured on the “Colbert Report,” would never be seen again.

Mr. Colbert told audience members that after a brief revival of the pompous newscaster character during the Republican National Convention last week, lawyers at CBS were contacted by lawyers from another company, who informed CBS lawyers that the “Stephen Colbert” character was the other company's intellectual property.

"I feel the same way, but what can I do?" said Colbert as the audience responded negatively to his announcement. "The lawyers have spoken. I cannot reasonably argue that I own my own face and name. And as much as I'd like to have that guy on again, I can't."

Not all the scholars are buying it. 

“My reaction from afar is that it seems like a great publicity stunt,” says David Nimmer, an intellectual property law professor at the UCLA Law School, in a phone interview with The Christian Science Monitor. “On the whole it strikes me as a bit of a mismatch.”

The old “Stephen Colbert” character appeared on both the “Daily Show” and “The Colbert Report,” but Colbert claims that due to legal issues, it will never appear at Colbert’s latest gig, “The Late Show.”

Other comedians have faced similar issues as they move from media outlet to media outlet. According to The New York Times, comedian and TV personality David Letterman had similar issues when he moved from NBC’s “Late Night” show to CBS’ “Late Show.”

Instead of bringing completely intact characters across show lines, Mr. Letterman was forced to tweak them by changing names.

Some experts on intellectual property law say, however, that Colbert’s announcement is confusing, given that the “Stephen Colbert” character seemed like more of a persona and an attitude than a fully developed character.

In the world of intellectual property law, copyrights apply to original characters in a fixed and tangible medium (imagine Scarlett O’Hara or Sherlock Holmes). With Stephen Colbert’s similarities to “Stephen Colbert,” the persona, Columbia Law School’s Philippa Loengard tells the Monitor that the character is not copyrightable. It could be trademarked, she says, but trademarking that character would require Stephen Colbert’s permission, as the two share a name.

Barry Irwin, a expert on Copyright and Entertainment law at Notre Dame, disagrees, however, telling the Monitor by email that if the character is “sufficiently delineated,” it could belong to whoever was the creator’s employer at the time of the character’s nativity.

“If those familiar with the character could reasonably predict what the character would do or say in a given situation,” writes Mr. Irwin, “it is probably sufficiently delineated to be deemed protected by copyright.”

Irwin adds that he does not agree that the character sharing a name with Stephen Colbert makes it uncopyrightable.

Despite questions of sufficient delineation, Ms. Loengard agrees with Mr. Nimmer that there could be something rotten in the Colbert universe. She tells the Monitor that not only are the legal issues surrounding this sort of intellectual property complex and difficult to pin down, but she also believes that the rights to such a character would have been hammered out in Colbert’s exit agreement with Comedy Central.

If the rights to that character were established in that exit agreement, Loengard says, Colbert should not have been surprised after bringing out the character in response to the RNC.

Nimmer says that on-screen characters have occupied a murky role in copyright law since Sam Spade and the Maltese Falcon. Part of the problem is that the law of characters “has been abstracted from provisions for books, movies, and plays,” he says.

Both Nimmer and Loengard say that without knowing exactly what Comedy Central’s lawyers possibly said to CBS’ top lawyer, it is impossible to identify exactly the intellectual property issue in this instance.

Stephen Colbert may have had the last laugh, though. After announcing the death of “Stephen Colbert,” he introduced audience members to a new character, the newscaster’s American flag shirt-clad identical twin cousin. His name? Stephen Colbert.

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