CBS Late Show host Stephen Colbert riffed on an alleged intellectual property tiff between his former and current employers in a Wednesday night segment, touching on one of the thornier aspects of copyright law: the distinction between the expression of an idea (copyrightable) and the idea itself (not so much).
Colbert claimed a July 18 Late Show segment in which he brought back the ultra-conservative “Stephen Colbert” host character from his old satirical Comedy Central show, “The Colbert Report,” raised the ire of that channel’s parent, Viacom.
“CBS’s top lawyer was contacted by the top lawyer from another company to say that character Stephen Colbert is their intellectual property,” Colbert said Wednesday, adding that the claim was “surprising, because I never considered that guy much of an intellectual.”
Colbert promised never to perform the character again. Then he introduced his “twin cousin,” who also happened to named “Stephen Colbert.” After chatting with the cousin for a few minutes, Colbert did an old gag from his Comedy Central show titled, “The Word.” Only he spelled it, “Werd.”
The claim that Colbert violated Viacom’s copyright or trademark by playing a character with whom he shares a name is “not a claim that would necessarily be laughed out of court,” said Georgetown Law Professor Rebecca Tushnet. That could especially be true if Colbert’s contract with Viacom specifically spelled out the character’s ownership.
However, if the case got to court, Colbert would likely prevail “because [the character] is so central to who he is, and courts are protective of artists’ freedom to continue making art in their own style,” Tushnet said.
CBS declined to comment. Viacom did not respond to a request for comment.
The fact that Colbert used his own name for the character wouldn’t necessarily aid his case, said Santa Clara University Law School Professor Tyler Ochoa. Some fashion designers use their names to brand clothing lines distributed by one company and are barred from using their names at another, he said.
Neither of Colbert’s satirical efforts to skirt IP law – claiming he was playing his character’s identical cousin and changing the spelling of “word” – would make any difference under the law, Tushnet and Ochoa agreed.
Ochoa said Colbert has a history of mocking IP law—but not getting it quite right.
When Stanley Tucci humorously confronted him about copying his Caesar Flickerman character from the “Hunger Games” movies in his “Hungry for Power Games” parodies about the 2016 election, for instance, Colbert explained he was actually playing Caesar’s brother, Julius Flickerman.
“Changing the name isn’t a defense,” Ochoa said. “It’s a parody under fair use law—that’s the defense. But he likes poking fun at the fact IP law draws distinctions that don’t necessarily make sense.”
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