During the Republican National Convention and the Democratic National Convention, Stephen Colbert, host of “The Late Show with Stephen Colbert” on CBS television, decided to bring back the character he played (using his own name) on “The Colbert Report,” which aired on Comedy Central from 2005 to 2014. On his July 27 show, Colbert told his audience that the corporate lawyers said that he could not use the Stephen Colbert character from “The Colbert Report.” So he did what any comic would do: He invented an identical twin cousin of the “Colbert Report” character and had a “Werd” segment instead of a “Word” segment.
This situation raised an interesting legal question: Can Colbert be blocked from using a character he played on another show?
The answer lies within the copyright act and case law. The copyright act protects original works of authorship once it is fixed into a tangible medium. Since the 1930 Second Circuit case Nichols v. Universal Pictures Corp., courts have found that individual characters can be protected. However, these characters must be well developed to warrant copyright protection. Thus, if the Stephen Colbert character from “The Colbert Report” was well developed, that character could warrant its own copyright protection.
At this point you may be wondering, “Okay, but that still does not tell me why Colbert can’t use the character on ‘The Late Show.’ ” That brings us to the second part. Under section 101 of the Copyright Act, “a work prepared by an employee within the scope of his or her employment” is a “work made for hire” and the employer is considered the author and owns the copyright. So, unless there was an agreement to the contrary, Comedy Central would be considered the author and owner of the Stephen Colbert character from “The Colbert Report” and could prevent Colbert from using the character on “The Late Show with Stephen Colbert.”
This is a lesson for all actors and entertainers who become known as a particular character. You are not the character — even if that character uses your own name — and can only perform that character within the scope of your employment unless there is an agreement giving you the rights.
Eldonie S. Mason Esq. is the founding member/attorney and arbitrator at Mason Firm, LLC, in East Brunswick. Visit masonfirmllc.com.