Payton & Associates, LLC
Commercial Litigation Attorneys
Miami, Florida

Colbert character stirs potential intellectual property suit

The law can be complicated and confusing for Miami residents who become entangled in legal disputes. What may seem like a simple issue on the surface can quickly turn into a nuanced and complex corporate dispute between different parties. This is especially true in certain areas of the law like business litigation involving an intellectual property dispute.

For example, a current intellectual property dispute is brewing that involves late night television host Stephen Colbert. Colbert used to run his own show on Comedy Central, which is owed by Viacom. In that show, Colbert created a fictional character with his own name. However, after becoming the host of CBS's The Late Show, Colbert dropped the fictional character and hosted the show as his true self.

CBS and Viacom may now have a dispute over the issue of who owns the fictional character created by Colbert. Often, a work prepared by an employee belongs to the employer, if the work is prepared during the course of employment and there is no contract that states otherwise. Accordingly, Viacom may assert it owns the rights to the fictional character, and the character cannot now be used by Colbert during his show on CBS.

On the other hand, there may be defenses to such a claim, including a fair use defense. Previous court decisions have held that stirring a person's memory of a copyrighted character is not equal to using or appearing to be substantially similar to the character. The distinction between the two can mean the difference between liability or non-infringement.

Ultimately, it remains to be seen how the dispute will be resolved. The case illustrates how intellectual property matters can become very complex, however, including not only the potential for an infringement claim, but the potential defenses that might be used to that claim. Businesses of all types should understand when a potential infringement claim is at issue, and what defenses might be presented to such a claim. By doing so, companies can best protect their interests in this complex area of law.

Source: Hollywood Reporter, "Can Viacom really stop Stephen Colbert from playing 'Stephen Colbert'?," Eriq Gardner, July 28, 2016

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