2018 Articles

Can Stephen Colbert Bring Back Stephen Colbert? Alternate, Fictional Personas in Copyright

Shaffy, Kourosh Connor

This Note argues that Stephen Colbert should have the right to use his former Comedy Central persona on his new CBS show. Creator-performers of characters that are fictionalized versions of their own, real personas should not lose their rights to these characters because of copyright law. Traditional concerns associated with a need for copyright (for example, the danger of unapproved copying) are not present where the author’s presence is essential to performance of the character, as is certainly the case here. Nobody can play the fictional Stephen Colbert character but the real Colbert. An artist like Colbert must be free to use his character. Part I examines current case law. Part II argues that this is not the ordinary case of a performer’s use of intellectual property where he or she is but an actor playing a typical fictional character; instead, this is a case of an actor whose fictional persona is so intertwined with his own persona that many audiences have not even been able to discern that the actor was playing a character at all. Part III concludes that because the Comedy Central persona is Colbert’s own creation—a fictionalized alternate persona of his own, bearing the actor’s real name and likeness, which he used and fleshed out not only on his Comedy Central series but also created prior to that series’ debut and then used in many other public arenas—it should be copyrightable by Colbert independent of Comedy Central’s copyright in “The Colbert Report.” In order for Colbert and similar creator-performers of such detailed alternate personas to be able to use their characters freely, these very specific types of characterpersonas should be protected by a specific, enumerated category of copyrightable works of their own under the Copyright Act.