January 01, 2015

Will the Real Stephen Colbert Please Stand Up?

Zachary Heck

For nearly two decades, Stephen Colbert entertained and educated many of us as his ultra-conservative and faux-newscaster alter-ego, “Stephen Colbert.” The character first appeared in 1996 on The Dana Carvey Show. The following year, Colbert (the character) graduated to the role of correspondent on The Daily Show, before helming his own show, The Colbert Report, from 2005 to 2014.

Although Colbert crafted his character as a caricature of Fox News Channel’s conservative talk show host, Bill O’Reilly, the lines between fiction and reality often blurred. In 2008, Colbert’s character attempted to appear on the presidential ballot in the South Carolina primary, but withdrew his candidacy to “avoid putting the country through an agonizing Supreme Court battle.” In 2010, he testified before Congress about the challenges facing undocumented-immigrant farmworkers, lamenting that “the obvious answer is for all of us to stop eating fruits and vegetables.” Colbert’s character even formed an actual super-PAC and a 501(c)(4) organization to help fund it.

Stephen Colbert retired his character to take over as host of The Late Show in 2015, but during a live broadcast following the 2016 Republican National Convention, Colbert brought back the character to provide insight into “Trumpiness” during his signature segment, “The Word.” The following week Colbert (the person) announced that “CBS’s top lawyer was contacted by the top lawyer from another company to say that character Stephen Colbert is their intellectual property.” Colbert then added that such a claim is “surprising, because I never considered that guy much of an intellectual.”

Of course, Colbert could not resist testing his intellectual property rights just a little further. First, he vowed to never have Stephen Colbert back on The Late Show, and then he invited the character’s “identical twin cousin,” who also happened to be named “Stephen Colbert.” He also resurrected “The Word” segment from The Colbert Report, but he spelled it “The Werd.”

During his previous engagements, Stephen Colbert used his own name to satirize O’Reilly and other Fox News Channel hosts, but the “works made for hire” doctrine likely allows Comedy Central parent company Viacom to lay claim to “Stephen Colbert.” Generally, under this doctrine, a work prepared by an employee within the scope of his or her employment is owned by the employer, unless there is an explicit contract allocating the rights elsewhere. If Viacom decided to sue, Colbert could respond with a fair use defense—forcing a court to weigh the purpose and character of his use, the nature of the character “Stephen Colbert,” the amount and sustainability of the portion taken, and the effect of the use upon the potential market. Beyond just using the same name, the court likely would need to consider how the Stephen Colbert character is so integral to his person, demonstrated by Colbert’s use of the character outside of television. Further, courts are generally protective of an artist’s freedom to continue making art in their own style. Such a lawsuit could be unique in evaluating whether Colbert has any rights to his own faux personality.

Colbert’s additional use of the character could prompt a very intense courtroom battle. Neither Viacom nor Comedy Central have publicly commented, and without public access to any contracts, the “truthiness” of who owns the character remains a mystery. For now, audiences will have to settle for the real Stephen Colbert, whichever one that is.

Zachary Heck

Zachary Heck is an attorney at Faruki Ireland & Cox P.L.L. in Dayton, Ohio.