A Tale of Two Stephens: Stephen Colbert and his Right to Use his Own Name

Aug 25, 2016

Colbert on Late ShowIn a recent episode of CBS’ The Late Show with Stephen Colbert, the host lampooned an apparent cease and desist demand from lawyers contending that Colbert improperly revived his “character” from The Colbert Report, his prior show on the Comedy Central network.

For the uninitiated, some explanation may be in order. Before his current gig on CBS as host of The Late Show, Colbert portrayed the narcissistic, politically right-wing spin doctor of truthiness and host of The Colbert Report, a late night talk show on Comedy Central. Colbert played his over-the-top caricature for years, often as a foil to his left-wing liberal counterpart on Comedy Central, John Stewart.

During The Late Show’s coverage of the national conventions earlier this Summer, Colbert brought back the Comedy Central Stephen Colbert character for a cameo and that is when someone decided to sic the lawyers on him.

Now, I do not pretend to know the details of the assertions made regarding Colbert’s use of his prior host persona. It does, however, present an interesting question in the law of intellectual property. Can it be that an actor like Colbert may not actually own or have a right to use his own name and persona?

One has to raise an eyebrow—as Colbert himself is known to do—at the suggestion that a network has the right to control the use of the name and persona of a performer like Colbert. Still, is it not also true that, as least in a case like Colbert’s, an actor may create such a unique “character” around his own name and persona that his employer might obtain intellectual property rights in the character, much like in the case of an author of a comic book who creates a new superhero for her publisher?

In a landmark 1950s federal court case, the Ninth Circuit Court of Appeals considered whether a literary character, Sam Spade, was copyrightable. In that case, the court observed:

It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.

Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc. (9th Cir. 1954) 216 F.2d 945, 950.

This case has given rise to the “story being told” doctrine, though this area of law is murky, with different tests arguably being applied based upon graphically represented characters like cartoon characters versus purely literary characters versus visually depicted characters in television and movies. See discussion in Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc. (C.D. Cal. 1995) 900 F. Supp. 1287, 1296.

Based on the “story being told” test, however, a strong argument can be made that the Colbert character is copyrightable. If any character falls into the category of the “story being told,” it is very likely Stephen Colbert’s character Stephen Colbert. The persona of the character himself was the driving force behind the show and the focus of its humor. Colbert’s right wing caricature is certainly a “unique character” with “specific qualities” that remain constant in his depictions, qualities that quite arguably transcend the actor playing the character. Metro-Goldwyn-Mayer, Inc., supra, 900 F. Supp. at 1296.

With all due respect to Mr. Colbert, when an actor creates or portrays a character that, in and of itself, becomes an icon and the focus of a story or other media, like a Rocky or a James Bond, that character may well give rise to intellectual property rights separate and apart from the actor himself or herself.