What’s In A Name? The Protectable Expression Of An Idea vs. The Idea Itself
What’s in a Name?
A recent Stephen Colbert copyright infringement case brings to light the distinction between ideas and the expression of an idea, and whether either is subject to trademark, copyright, or the fair use doctrine.
According to Bloomberg BNA, on a July 18 episode of the Late Show, the “real” Stephen Colbert brought back to life a previous version of a character in Stephen Colbert’s repertoire that is, according to Viacom’s attorneys, the protected intellectual property of the network. Problematically, that character is also named “Stephen Colbert.”
In what may have been an effort to inject a bit of humor into the situation—and perhaps poke some fun at one of the more complex distinctions of IP law—Stephen Colbert agreed to never play “Stephen Colbert” again. However, his twin cousin of the same name appeared shortly thereafter to take the lead in a skit entitled “The Word,” strategically renamed “The Werd” in a half-hearted attempt to circumvent further Viacom claims of IP infringement. Throughout the disagreement, Colbert’s efforts primarily had the effect of annoying Viacom while boosting Colbert’s rankings, which may have played a bigger role in the confrontation than the IP infringement itself.
Colbert’s Repeat Performances Could Be Considered Parody Under Fair Use Law
Colbert’s continued use of his own character might be defended as a parody under the fair use doctrine, which basically means that as long as Colbert was only copying the copyrighted material for a limited purpose, such as commentary or parody, then it’s fair game. There may be some merit to Viacom’s IP claims when it comes to the renaming issue, however, since changing the name of the copyrighted material is not a defense to copyright infringement.
If the case goes to court, according to Santa Clara University Law Professor Tyler Ochoa, it is unlikely that Colbert’s attempt to spell the name of the segment differently would really have any impact under the law. But, the fact that the character “Stephen Colbert” is so central to who Stephen Colbert (the comedian) is as an artist would likely carry some weight in his favor. As a general rule, courts are notoriously guarded against copyrights that infringe on an artist’s freedom to continue making art in accordance with their particular style.
Colbert is Walking in Letterman’s IP Infringement Footsteps
It certainly wouldn’t be the first time a late-night performer switched networks and got away with a few name changes and character shifts without any serious repercussions, outside of some initial loud complaining from the rival channel. Back in 1993, David Letterman was up against similar IP claims when he left NBC for CBS. After modifying the titles of a few of his favorite NBC segments, he went about business as usual to a very successful CBS-run Late Show that incorporated much of his old material under the slightly modified names.
When it comes to protecting the expression of an idea against IP infringement, simply changing the name can be a risky practice on both sides of the law. Mitigation of IP risk begins with an effective IP strategy and a comprehensive contract that carefully outlines the ownership of the artist and other key stakeholders. If you need help protecting your work against copyright infringement, contact us for a consultation.