Can Viacom Really Stop Stephen Colbert From Playing "Stephen Colbert"?

Why a lawsuit has the potential of becoming one of the all-time great cases concerning split personality.
Stephen Colbert on CBS' 'Late Show'

A popular Comedy Central personality leaves to become a CBS late-night show host only to hear Viacom assert entitlement to old material. No, not Stephen Colbert, who revealed on Wednesday that a lawyer from "another company" was claiming intellectual property over the character "Stephen Colbert" from The Colbert Report. We're talking about Craig Kilborn, who in 1998 resigned from The Daily Show to become host of CBS' Late Late Show.

Jon Stewart's reign on The Daily Show rendered Kilborn's almost a forgotten relic, but before he left Comedy Central, Kilborn had a popular segment called "Five Questions," which was basically a light-hearted interrogation of various celebrities. Upon departing, Kilborn got into a bit of a tiff with Comedy Central over who owned the intellectual property of "Five Questions." It was complicated because as a New York Times piece recounted at the time, Kilborn used to do this on dates. A Daily Show executive producer suggested he incorporate it into the show.

Intellectual property oddness has become a facet of late-night television, and pretty much anytime a popular host moves, audiences get upset. For example, see David Letterman's first show where the comedian riffed on NBC's objection to using the "Top 10 List" and Stupid Pet Tricks. ("Who would have thought you would hear the words 'intellectual property' and NBC in the same sentence?" asked Letterman.) And anybody remember the brouhaha caused over Conan O'Brien's Masturbating Bear? 

Of course, nothing is quite like the budding controversy over "Stephen Colbert," which has the potential of becoming one of the all-time great cases concerning split personality, and not only due to the nature of the character itself. After all, Viacom would be suing CBS. Both companies are substantially owned by Sumner Redstone. In 2005, the same year that The Colbert Report premiered on Comedy Central, Viacom spun off from CBS. Now, Viacom's chief Philippe Dauman is suing Redstone, and there's plenty of speculation that if he fails, the two companies might merge again with CBS' chief Leslie Moonves ruling both. Think about the "Colbert" controversy in that context for a moment.

Now, back to the character.

Colbert used his own name, but attempted a satire of Fox News hosts. Copyright law is thankfully loose enough to make fun of Bill O'Reilly without getting into legal trouble, but on the other hand, copyright law has something called "works made for hire," which is not just fodder for TMZ fights, but the vehicle by which Viacom can lay claim to "Stephen Colbert." A work prepared by an employee within the scope of his or her employment is owned by the employer unless there's an explicit contract to the contrary. This rule pretty much impacts everyone working for an American corporation.

Of course, there's always wrinkles.

On Wednesday night's Late Show, Colbert introduced "Stephen Colbert's identical twin cousin," wearing a short-sleeved American flag shirt and saying, "Hello, America! Hello, Colbert country! Stay strong. Be brave."

If Viacom did sue, it would probably prompt a fair use defense; those can be complicated, and no doubt if a judge was asked to weigh the purpose and character of the use, the nature of "Stephen Colbert," the amount and substantiality of the portion taken and the effect of the use upon the potential market, it would add up to one hell of an opinion. Colbert could also try out an argument that "Stephen Colbert's identical twin cousin" is nothing like "Stephen Colbert" and might take heart in a 1983 decision concerning an alleged Superman rip-off on ABC. There, the 2nd Circuit justices wrote, "Stirring one's memory of a copyrighted character is not the same as appearing to be substantially similar to that character, and only the latter is infringement."

If Colbert emerged victorious, "Stephen Colbert's identical twin cousin" might be entitled to its own copyright. After all, judges have ruled that parodies of parodies can gain their own protection. But Colbert probably wouldn't own it. That's right. It'd be CBS' under that same work-for-hire doctrine.

It should also be noted that Colbert doesn't always have the finest ear when it comes to copyright law. Just check out what he had to say just days before Led Zeppelin was cleared of committing copyright infringement to create "Stairway to Heaven."

Correction: The original post stated that Kilborn weaned viewers off "Five Questions" by doing "Four Questions" one day and "Three Questions" the next. Reportedly, it was instead Stewart who had done this.

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