A DISCUSSION OF LAW AND JOURNALISM

Conan Escapes NBC, But What of His Characters?

By Trevor Timm

While most of the media attention about Conan O’Brien’s exit agreement with NBC has focused on the large $45 million payout for him and his staff, and the “non-disparagement” clause that prevents him from publicly criticizing his former employers, the press overlooked an equally interesting provision that keeps all of Conan’s characters in the hands of NBC.

The copyrights to popular characters from Late Night with Conan O’Brien and the Tonight Show such as Masturbating Bear, Conando, and Pimpbot 5000 will still be owned by NBC, as well as recurring comedy bits such as “Year 3000” and “Desk Driving.” Because the two parties agree that the characters are “work-for-hire”—meaning that since NBC paid the writers to create them for the show, they also own the copyrights—Mr. O’Brien cannot use them for any other show he might host in the future. However, the agreement does bring up other unanswered questions about one character in particular and the music that usually accompanied the other characters’ appearances.

Triumph the Insult Comic Dog, possibly the most famous character from Late Night, was created by Late Night writer Robert Smigel independent of the show as evidenced by Triumph’s many appearances on other programs. NBC claims it co-owns Triumph with Smigel, and it is unclear whether the parties have come to a deal on The Insult Dog’s copyright ownership. Some sources say NBC does indeed get rights to Triumph with this deal, while others say the issue remains unsettled.

While Conan fans may not see most of their favorite bits and characters wherever Conan lands, they still may hear some familiar music. Late Night band leader Max Weinberg and guitarist Jimmy Vivino own the copyrights to the theme music to many of Conan’s staples such as “Masturbating Bear theme,” along with the themes to Pimpbot 5000 and Year 3000. According to the Smoking Gun, these songs were not part of the deal.

Conan could use those themes for similar, though not exact replicas of the well known skits. As Above the Law points out, David Letterman struck a similar deal with NBC in 1993. NBC owned the copyrights to his characters but he was still able to get around them. The likeness of one of his most famous characters, Larry “Bud” Melman, was copyrighted by NBC, but Letterman still used the actor who portrayed him, Calvert Deforest, and just changed his name.

The legal key for O’Brien, if he wants to use characters of a similar nature on any future show, is whether those characters show a “substantial similarity” to the characters owned by NBC. In Warner Bros v. American Broadcast Co., the Second Circuit explained that “substantial similarity…is a term to be used in the courtroom to strike a delicate balance between protection to which authors are entitled under an act of Congress and freedom that exists for all others to create their works outside the area protected against infringement.”

Unfortunately, the line drawn by courts in determining whether something is “substantially similar” is not clearly defined. As the Second Circuit noted: “In determining whether a character in a second work infringes a cartoon character, courts have generally considered not only the visual resemblance but also the totality of the characters’ attributes and traits.”

While some websites have speculated on Conan’s leeway in replicating past characters, there is little court precedent for this situation. Even the previous example of Letterman was not litigated.  The only way to know for sure is to bring the specific case in front of a jury, and that is something surely both parties wish to avoid.

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