Letterman Needs New Names for Old Shtick : Television: CBS is attempting to sidestep a possible copyright turf war with NBC by renaming sketches the host will bring to his new show.


If David Letterman does Stupid Pet Tricks on CBS, will NBC take him to court?

Earlier this summer, NBC threatened to sue Letterman if he used his Top 10 list, Stupid Pet Tricks and some popular characters from “Late Night With David Letterman” on his new show for CBS, which premieres to much fanfare tonight. NBC’s position is that, under “intellectual property” laws, it owns the rights to “Late Night With David Letterman” and elements in the show that were developed at NBC. Letterman said that he and writer Merrill Markoe developed Stupid Pet Tricks on an earlier NBC show to which he owns rights; the Top 10 list, he joked to TV critics, “we stole from USA Today.”

As Letterman prepares to hit the CBS airwaves tonight, NBC officials declined to comment on whether NBC will sue if Letterman transgresses on what they consider their turf. While maintaining NBC’s legal position, spokeswoman Pat Schultz said that NBC had been given assurances by CBS’ attorneys that they did not intend to violate NBC’s rights.

In reality, sources said, NBC would have to weigh any benefits of a lawsuit against the fact that the Peacock network could look petty--and comical--pursuing Letterman in court after losing him to CBS. The dispute would make a colorful legal case--and give Letterman comedic fodder night after night on a rival network.



On Friday, CBS attorneys and the producers of Letterman’s new show declined to comment on what elements of the NBC show they think they can legally use--and what elements they plan to bring to CBS. But, although the Letterman writers are likely to remain creatively unfettered, it appears that they are trying to be conciliatory toward NBC while taking the tack of doing some of the same shtick under different titles.

During a dress rehearsal last week, Letterman did a Top 10 list that was called “The Late Show Top 10.” “Brush With Greatness,” a routine about running into celebrities, is said to have been called “Celebrity Encounter.”

“It appears that CBS is playing it safe legally” by renaming elements, said Peter Trzyna, an intellectual-property attorney at the Keck, Mahin & Cate legal firm in Chicago. “A trademark is a term or symbol that tells consumers the source of goods or services. There is an exclusive right to use the symbol but not to the goods and services themselves. A trademark offers no protection against identical goods and services identified under a different name.”

In the case of the Top 10 list or even Stupid Pet Tricks (which NBC has registered as a trademark), CBS could argue that the terms, in effect, are generic and not protected. “People have had Top 10 lists of things for many years,” Trzyna said. “In the case of Stupid Pet Tricks, there could be a good trademark fight, with CBS arguing that the title is merely descriptive and not protected. In other words, while Stupid Pet Tricks may indicate a routine arising from NBC, it doesn’t prevent others from having their pets do tricks in public.”

So far, it does not appear that Letterman plans to test the Stupid Pet Tricks statues. But that is not to say that the Letterman producers won’t have stupid pet tricks on their show. They could call it Dumb Pet Tricks or Dumb Domestic-Animal Capers and be on safer ground than testing Stupid Pet Tricks per se. “The further you get from the actual title, the safer you are,” Trzyna said.

In the area of fictional characters, it seems that Larry (Bud) Melman, the bumbling character, will not be around on the new Letterman show, but Calvert DeForest, the actor who plays him, will be. NBC is said to own the rights to the character. But that apparently does not mean that the actor who plays him can never work again.