Late Night's Legal Knots

It's going to be interesting to watch the threads unravel as the NBC television network tries to extricate itself from the late night mess it has gotten itself into.

As you've undoubtedly heard, NBC is pulling the plug on Jay Leno's prime time show because of poor ratings. (Is there ever any other reason TV willingly cancels a show?) And it proposed to put Leno back at his old 11:35 p.m. EST slot for a half-hour program, which would push the Tonight Show with Conan O'Brien to a slot after midnight. That's an offer O'Brien has publicly declined to accept.

We can probably assume that, at that level, everybody's working under contract. So people in that high-profile arena don't usually just shout "Take this job and shove it!" and storm out the door. It makes for nasty breach-of-contract litigation. But an unhappy comedian isn't the best thing a network could hope for as the host of a long-standing, iconic program. So, if things can't be smoothed over to everyone's satisfaction, look for some type of legal settlement.

There have been reports that Fox might be interested in wooing a disenfranchised O'Brien for its own late night show. The problem there is that Fox affiliates already have contracts for syndicated programming that they've been running at that hour. Stuff like that doesn't just get undone overnight.

Stay tuned...

More on Sherlock Holmes and the Case of the Copyrighted Character

One blog reader was inspired to ask a follow-up question regarding the recent post on the copyright of Arthur Conan Doyle's iconic character, Sherlock Holmes. She asked...

Would this have to have been done by Doyle himself, or could someone else pick it up later? And that leads to the whole question of who can copyright work? Just the author, her publisher, or ....?

My response is this: Initially, it was probably Doyle who applied for the copyright, or it was Doyle's publisher applying for it in Doyle's name. The laws were different then, and, of course, we're dealing with a different country's copyright laws when we're talking about the United Kingdom. So I can't claim to know exactly what the rules were there and then.

What I can tell you is that, under the current American law, the copyright automatically belongs to the author (unless it's a work made for hire). But the author can also assign the copyright to anyone. So there are lots of situations where the official registry is in the name of someone or something other than the author.

That said, let's also keep in mind that it's not the norm for a character to achieve copyright protection. Ordinarily, a character is excluded from that. Only in very unique cases, where the character possesses such distinctive traits as to separate it from all others is there a reasonable opportunity that it could be copyrighted. Comic book superheroes are one example of such characters.

The First Anniversary...and a Look Back at TV Lawyers

The day has arrived when the Artful Jurist can celebrate its first birthday. It was January 1, 2009, when the very first entry was posted to this blog. And here it is now the first day of 2010. (Makes it easy to remember the anniversary if you choose New Year's Day to make your entrance into the world.) So happy birthday, AJ, and may there be many happy returns of the day.

To those who have been readers of this blog, thank you very much for sharing your time here. And a very special thanks to those who've taken the time to write questions and comments. They're all much appreciated.

This being a holiday when people tend to reflect back on the year that has just passed, I think it's an appropriate occasion to look back with a certain amount of nostalgia on the legal profession as it has been portrayed on popular television over the years. And, apparently, so does the American Bar Association, which has published a listing of its Top 25 TV Law Shows in its ABA Journal. You can click through the list on its website by clicking here.

Is Free TV on Its Deathbed?

An Associated Press story suggests that the days of free broadcast television may be numbered. According to the AP, revenues for broadcast TV have been dropping while cable TV revenues remain strong. The result is that the American broadcast networks ? ABC, CBS, Fox, and NBC ? could simply find it much more profitable to go pay-TV cable and abandon the old system of providing free programming on stations that draw their revenue from selling commercial time.

The story acknowledges that such a move would take years because of the need to phase out all the affiliate contracts. But, besides, that there's another legal issue that would come to the forefront should the networks go cable and cease broadcasting over the public airwaves. Such a move would take them out from under the control of the Federal Communication Commission's regulations regarding what can and can't be shown on their networks.

The FCC has long been the guardian of the airwaves, which have been deemed to be a public resource that gives the federal government the right to step in and restrict certain content determined to be unfit for certain members of society. Take away the public airwaves and you take away the rationale for allowing the government to do that kind of policing.

Copyright? It?s Elementary, My Dear Watson.

Considering the plethora of commercials hyping it, you?ve probably heard that there?s a new Sherlock Holmes movie (appropriately titled Sherlock Holmes) coming out on Christmas day. Toss this one into the huge collection of film versions of the noted fictional detective. Was there ever a franchise more lucrative than Arthur Conan Doyle?s iconic sleuth? Just check out this web site if you?re curious how many different actors have played the role over the years.

But here?s a legal question concerning the famous Mr. Holmes. Was the character of Holmes copyrighted? The stories most definitely were, and my understanding is that, although the copyright has expired on most of Sir Arthur?s works (he died in 1930), at least one of his books is still protected under American copyright law. Still, that doesn?t answer the question of whether his most famous character was copyrighted.

Traditionally, you can?t copyright a character. You can only copyright the specific expression of that character?s participation in a creative work. But the courts have found some occasions where a character, itself, is so unique in appearance and traits as to be copyrightable in and of itself. Most often, those copyrightable characters tend to be cartoons and/or superheroes. Sherlock Holmes had extraordinary abilities, but he wasn?t Superman.

Still, as I perused the web in search of an answer, I found more than a couple of references to the ownership of the copyright to the character of, rather than the stories about, Sherlock Holmes. I don?t know if they?re accurate accounts. But I?d be curious to know if someone?s collecting a royalty check on just the title character in the new movie.

More than 120 years after first making his appearance, the master sleuth of Baker Street still provides a good mystery.