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Colbert for Law Professors

By my count, we’ve now seen three law professors “do” The Colbert Report: Neal Katyal (Georgetown), Jonathan Zittrain (Harvard), and most recently Lawrence Lessig (Stanford, but signed, sealed, and all but delivered to Harvard).  Here are the clips, in that order:

For years, law professors have wondered whether blogging is a good idea in light of anxiety over tenure and promotion. They have wondered whether blogging should count as scholarship, or as service, or as something else, or as nothing at all.

Now that we can see the opportunity here, we can ask the same questions about The Colbert Report. Should law professors go on The Colbert Report pre-tenure?

Imagine, in other words, that Lessig doesn’t have tenure. He’s published a new book, popularizing some themes that he’s been writing about in more learned scholarship. To Colbert or not to Colbert?

On the merits, I have some questions about the Lessig interview. Remix, the book that he is promoting, is linked closely to themes that animate Creative Commons — the importance of borrowing and blending in culture, intersections between volunteer and for-profit economies, and above all the proposition that authorial control is an invariable baseline. For years, via Creative Commons and otherwise, Lessig has been arguing that both authors and society are often better off when they relinquish partial control over their creative works — but that authors should be able to choose not to do so.

In the interview, though, Lessig didn’t make that point. Colbert baited him with the proposition that Colbert might remix Remix. Lessig: That’s great (so far so good). Then Colbert turned the proposition around; don’t remix Colbert, he advised (this is Colbert the character, not Colbert the Comedy Central employee). Lessig: No matter; Lessig is a joint author (of the interview? where does that come from?), so Lessig can authorize remixing without Colbert’s permission.  So there.  And the segment staggered to a close.

Isn’t the right response that if Colbert doesn’t want to authorize remixing, then Colbert doesn’t have to authorize remixing? Creative Commons is voluntary, not coercive. Authors and publishers don’t have to play in that sandbox.

Wasn’t it absolutely expected that Colbert would make this move? Isn’t the actor Colbert on record as being a righteous self-interested “pry it from my cold, dead hands” capitalist?  Lessig scored some important points, but I think that Colbert got the better of him.  Lessig and Colbert turn out to be brothers in arms, not adversaries, but Colbert played him like the latter.

Not to Colbert, then?

That’s the not-completely-serious or not-completely-silly question and answer.  Here’s the more serious topic, riffing on the same data.

Is there a time and is there a mode in which law faculty might engage in scholarship in ways other than text?  Is it possible to imagine Colbert, or The Daily Show, or something entirely different, constituting part of a scholarly portfolio?  If so, what would that look(or sound) like?

11 thoughts on “Colbert for Law Professors”

  1. Thanks for the link. I thought Lessig came off pretty well — Colbert was a good foil and the exchange probably got some people thinking about copyright law.

    As for Colbert pre-tenure, I’d think it would be a good idea, though it would probably have to fall under the “service” heading. It certainly shouldn’t be any more problematic than The Price is Right pre-tenure.

  2. Lessig might be operating under a theory of “viral” authorship — everyone who contributes to a project gets to do whatever they want with the work that results unless they expressly agree not to. It’s at least consistent with the spirit of “remix culture,” although if the authorship rights also contain the right to exclude, it’s a bit inconsistent with worries about anticommons.

    I don’t think the right response to Lessig is the Thomson v. Larson solution of, essentially, Colbert (or Viacom) gets to decide who owns what because his name is on the bills and the marquee. I think the justification for the result in Thomson has to be that there’s an objective reasonableness test that has comes into play when the parties disagree. So the theory would be that dramaturges just aren’t authors in the absence of agreement otherwise, and neither are interviewees, or editors, or actors.

  3. I will leave your serious topic to others, but I am interested in the topic of the copyright ownership of the interview. Traditionally in oral history interview programs it is assumed that at best the interviewer and the interviewee each have a copyright in their own words. (In some interviews, the contribution of the interviewer is so minor as to not warrant a claim to authorship.)

    In this case, though, the interview really seemed to fit the definition of a joint work of copyright: “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Neither contribution would make much sense without the other.

    If it is a joint work, then Lessig’s obligation to his co-author is merely to account for any profits that might be made. Of course, the flip might work as well: Comedy Central might owe Lessig a portion of its profits for that part of the show.

    It makes me wonder what sort of releases Lessig signed prior to appearing.

  4. The release issue is an obvious one, and I would be surprised if Lessig retained any copyright (or other) interest.

    But set aside the release for the time being.

    Even if the two contributions were merged into a unitary whole, and even if there were the requisite intent (I believe that the show is taped in New York, so let’s assume that Second Circuit law on that question would apply), what about fixation? A work has to be fixed by or under the authority of the author. If interviewers and interviewees are joint authors, does each of them have to participate in the “fixation” of the work, or “authorize” its fixation? Lessig undoubtedly consented to the taping. Is consent, or “implied” authorization, enough to grant him joint authorship status?

    I consent to my law students taking notes of my lectures. Have I thereby “authorized” fixation of my words?

  5. I don’t see any puzzle with the fixation issue. Lessig knew the interview was being recorded; that’s fixation under the authority of the author. Authorization can be understood, and in fact it is all the time. E.g., I dictate Chapter 1 of my novel to a typist. I do not incant, “I hereby authorize you to fix this work.” I think it’s still fixed under my authority.

    If you authorize your students to tape your lectures the answer is the same. I don’t think you need to own or have any possessory interest in the physical fixed copy (even the first one) to have a fixed work of authorship under the Copyright Act. There’s the added wrinkle in your hypo of authorizing “notes,” which raises the question of whether the notes really fix the work or do something else to it, but now we’re getting off on a tangent. More here:

  6. I do think they are co-authors, a la Thomson — but note the confusion about “dominant” authorship in that case. Without getting into that, it struck me while watching it that they really do appear to be engaged in co-authoring an event. They were both working with each other and both playing to the audience. There were parts of this that may have seemed like a debate of sorts, but a good talk show interview needs collaboration — it is not a zero-sum game. (Makes me recall Georg Simmel on dinner parties).

  7. I’m not persuaded, either on the co-authorship point or on the fixation point.

    As to co-authorship, I confess that I’ve never been as offended by Thomson v. Larson as some folks are. In case even more than in that one, the result of a joint authorship finding would be a duty to account that I think is unreasonable and unwarranted. It’s no defense to say, as Judge Easterbrook once did in a different copyright context, that Lessig would forbear to make his claim.
    On the front end of the doctrine, while Lessig claims to be a joint author, Colbert — both actor and character — surely lacks the requisite intent, even objectively speaking. If there are copyrightable elements to the exchange, I see no difficulty in separating Colbert’s copyright from Lessig’s.

    As to fixation, dictating a book to a typist is the kind of different scenario that I had in mind when I suggested that fixation is a problem here. The typist is an agent. Authorization is implicit but nonetheless clear from the context. If I authorize my students to record my lecture then indeed the work is fixed, but my hypo wasn’t clear. What I meant was that my students’ permission to record the lecture is implicit in the fact that they arrive for class with pen and paper, and I don’t object. (I’ve banned laptops this semester, but that, too, is a separate thread.) I do nothing affirmative to suggest or request that they record my words. In that case, I’d think that they haven’t “fixed” anything on my behalf. (If they are merely transcribing, in other words, they are transcribing for their own benefit, not mine. If they are amending my words as they take notes, the interviewee-as-joint-author analysis suggests, implausibly to me, that the students and I are joint owners of the resulting “work.”) Similarly, it’s difficult to claim that Comedy Central and its staff are anything resembling Lessig’s (or any interviewees’) agents. The argument that they are objectively understood to be acting on his behalf, in some sense of the implicit, strikes me as farfetched.

  8. I think the intuitions are pulling apart here because agent-less fixation is relatively new, in copyright geology terms. The idea of a recorded bootleg performance is sort of weird from the original perspective of copyright, in which fixation meant prior fixation, and spontaneous performances could not possibly be fixed. The two options are either to preserve that division to some degree or abandon it, and it depends on what you think the purpose of fixation is: to serve as sort of a proxy for an intentional claim of copyright, as registration once did, or simply to ensure that the work exists for future viewings.

    I see it as the latter. So it doesn’t matter if the fixation is somewhat happenstance, as long as it exists and wasn’t done surreptitiously (so that the author retains some control over the process). But if you want fixation to do some work in limiting the number of protected works that are created, then I can see the desire to require agency.

  9. Siva Vaidhyanathan went on the Daily Show and possibly that clinched his tenure!

    Incidentally, John Perry Barlow was on Colbert:

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