As a longtime David Letterman fan, I followed with interest his dispute with NBC over the doctrine of "intellectual property." You'll remember that when Letterman switched to CBS, NBC made threats, telling him he could not use well-known portions of his show such as "Stupid Pet Tricks" and "The Top Ten List."
In response, Letterman said he "stole" the Top 10 idea from "USA Today." And "Stupid Pet Tricks"? That was the invention of Letterman's former girlfriend and head writer Merrill Markoe.Remaining adamant, NBC also denied him the title, "Late Night with David Letterman," because the network owned it.
He also could not use "Paul Shaffer and the World's Most Dangerous Band," or "Larry Bud Melman," the name of a character played by Calvert DeForest.
During his first CBS monologue, Letterman playfully asserted that CBS attorneys had assured him he could still call himself "Dave." Then NBC News anchor Tom Brokaw, an old Letterman friend, showed up and slyly grabbed one of the cue cards, saying, tongue-in-cheek, "This card is the intellectual property of NBC."
Even though this argument sounds pretty silly, Letterman has made some changes. He calls it "Late Show with David Letterman," The Top 10 List is now the "Late Show Top 10," Paul Shaffer's "World's Most Dangerous Band" is now "The CBS Orchestra" - and Calvert DeForest goes by his real name.
I thought Letterman would try "Strange Pet Tricks" - but he delayed that segment for a few weeks, then blatantly called it by its old name.
So what's the story here? Is NBC playing games? Is Letterman really running scared?
Arthur Miller and Michael Davis suggest in their book, "Intellectual Property," that the issue is one of very subtle distinctions: "Unlike a punch in the nose, the force of intellectual property is more like that of the invisible beam of Buck Rogers' ray gun."
Seems to fit this case.
Craig Madsen, a local attorney who specializes in entertainment law, believes the title, "Late Night" is owned by NBC, "and they may even have a registration on it." He also suspects that Letterman and NBC had an employment agreement spelling out copyright issues.
"Since Letterman was hired to do the job for them, then NBC, under the `work-for-hire' doctrine of copyright law, probably is the owner of his creative works."
But, says Madsen, "copyright only protects the form of the expression, not the underlying idea. So the underlying idea of `Stupid Pet Tricks' is not protectable. But if Letterman advertised he was going to do `Stupid Pet Tricks,' then that would be an infringement."
Madsen says, "It's tough to draw the line between idea and expression - when something is a protectable idea and a protectable expression. If you are close to the idea and the expression, you should be very cautious."
If Shaffer's "most dangerous band" name had been the original name, he could have taken it with him to CBS, claims Madsen. "The name of the band is the name of the band."
It is also the lawyer's opinion that the controversy is not simply an unkind effort on the part of NBC to make life difficult for Letterman. With the exception of "Stupid Pet Tricks," he says, "My guess is that if NBC had any attorneys worth their salt, NBC owned the rest."
So now we understand why NBC went after Letterman - and why he has exercised caution - even changing "Viewer Mail" to "The Old CBS Mailbag."
At least we can still call him Dave.