Abbott & Costello Heirs Sue Play For Briefly Using 'Who's On First?' Routine

from the culture-lockup dept

Abbott & Costello’s Who’s on First? routine is one of the most well-known comedy bits of the 20th century. There are a bunch of different variations on it, and they often changed things around when they performed it. Here’s one famous performance of it:

Of course, the history of the skit is a bit complicated with plenty of examples of similar skits being performed long before Abbott & Costello did their version. In fact, Abbott himself performed a version of it with someone else before teaming up with Costello. There have also been different debates over who actually wrote it — which isn’t that surprising given how many different versions there were and how others had performed similar skits.

And of course, this is how a normal creative process works, with experimenting and adjustments until it reaches a level that’s entertaining. People build on each other’s work, and they share and then change things around. But, in a world of copyright, that gets tricky. Milton Berle once claimed that “Who’s on First” was in the public domain and that everyone, including himself, used to perform versions of it.

And it gets even trickier the more you look, because it appears that some of the filmed versions are in the public domain allowing them to be shared anywhere.

But, of course, nowadays we live in a world where absolutely everything must be “owned” and the various heirs of Abbott & Costello insist that they own the rights to “Who’s on First,” and anyone who wants to do anything with it must license it from them first.

And thus, they are now suing the playwright and producers of a new popular Broadway play Hand to God that apparently includes a brief scene where one of the characters tries to impress another character by performing a version of Who’s on First? with puppets.

In the lawsuit, they trace the somewhat circuitous path of the copyright itself. It was originally held by Universal Pictures Co. after the act appeared in Universal’s One Night in the Tropics film in 1940, and then again in The Naughty Nineties in 1945. It notes that Abbott & Costello had a work for hire agreement with the studio, giving up all the rights to the act. Those copyrights have been renewed and extended thanks to changes in copyright law. However, in 1984 Universal transferred the copyright of just those scenes back to the heirs of Abbott & Costello. The heirs admit that the sound recordings did not have a federal copyright, but they do say that under NY state law, they have a “common law” copyright in the sound recordings — and that’s helped along by that recent ruling against Sirius XM concerning common law copyrights in NY.

Still, that raises a bunch of questions. While they may hold the copyright in those specific performances, given that the act was done way before that, do they really hold the copyright in the entire “Who’s on First?” script? It seems like a very strong argument can be made that they do not.

On top of that, if there actually is a copyright claim here, it seems like the fair use defense is a fairly strong one as well.

According to the NY Times article:

The federal lawsuit, filed in the Southern District of New York, is claiming copyright infringement against the playwright Robert Askins, the producers and the promoters. The estate said cease-and-desist requests were sent after the play opened on Broadway in April, and it is seeking damages and lawyers? fees.

? ?Hand to God? is using ?Who?s on First? not just to get laughs from the audience but also to get people to buy tickets,? a lawyer for Abbott and Costello?s heirs, Marc Rachman, said in a statement.

This is, clearly, an attempt to end-run around a fair use defense, but I don’t think it works. I don’t know what that line even means about “not just to get laughs.” No one is going to this play as a substitute for going to see Abbott & Costello perform the skit. People are going to the play because it’s getting great reviews and is funny — not because of the use of the skit, which is being performed not because of the inherent humor in the skit itself, but rather as a sort of cultural touchstone, referencing the famous skit. In the past, this would be what was known as an homage. Today, the lawyers and copyright maximalists call it infringement. But here, it seems pretty clear that it’s transformative, as the use is for a very different purpose (and, of course, done in a different way, involving a hand puppet, which is key to the plot of the play).

Beyond that, the actual complaint seems to undermine their own argument:

The scene takes place only about fifteen minutes into the one hour and forty-five minute play, and is one of the lighter moments of the production, without which the much darker tone of the rest of the play would be very difficult for the audience to handle. It is this purely comedic scene featuring Who’s On First?, conterbalanced with the more dramatic and serious themes of the play which are developed later on, that has allowed the play to garner both commercial success and wide audience appeal as a “dark comedy.”

But, by saying that, they’re basically admitting to the transformative nature here. It’s not being used as Abbott & Costello intended, as a vaudevillian slapstick, but rather as a set piece in a much larger, much darker piece. Also, who the hell are they to claim that the play would be “very difficult for the audience to handle.” How is that their position to say?

And the legal precedents don’t look good for the heirs either. A couple years ago, we wrote about the play Jersey Boys winning its lawsuit, allowing it to use a clip from the Ed Sullivan show thanks to fair use, noting that the use of the clip was clearly not a “replacement” for the original. Same here. And, just a couple months ago, another off-Broadway play was victorious in arguing fair use in using the premise of the TV show Three’s Company to create its own parody show. Thus, it seems that judges are recognizing that plays can make use of fair use to use elements of cultural touchstones in order to create their own enterntainment.

Either way, I’m sure plenty of lawyers will be able to bill tons of hours as this creates a huge legal mess, rather than just celebrating a moment of American cultural history.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Abbott & Costello Heirs Sue Play For Briefly Using 'Who's On First?' Routine”

Subscribe: RSS Leave a comment
Anonymous Coward says:


Can’t we happily live together? Art always builds on one or another kind of prior art. You see something and work with it until you like it and want to present it as a new form of art.
Hell, looking at some of the current copyright lawsuits I’m wondering why noone claims to be the first to put paint on some kind of paper. Because in the end all paintings are some kind of paint on some kind of paper.
Leonardo Da Vinci, Vincent Van Gogh, Edvard Munch…. all some paint on some paper.
Why can’t people accept that every form of art, including acting, has prior art?

Anonymous Coward says:

Re: Re:

re at 1.
The half-life time of the uranium that produced the electricity to make this unique performance happen is about 4.4 billion years and the heirs shall be rewarded for no less than this time!
So be happy the current limit is … what? … 100 years? Granted sooner or later the industry will catch up with my argument.

That One Guy (profile) says:

And yet again we are given a perfect example of how vital copyright is to a flourishing culture. Why, without copyright, and especially copyright lasting decades after the creator is dead(the actors in question died in 1974 and 1959 respectively), absolutely nothing at all would ever be created, as this clearly shows!

… what’s that, they’re trying to stop something from being created? And those sending out the C&D’s didn’t actually create anything themselves, they’re just leeching off of those that did?

Huh, might have to find a different example, this one seems to be broken.

Disruptors on full! says:

WHAT? After all this time, Masnick ADMITS common law copyright even exists!!!???

THEN, flop goes all Masnick’s and fanboy assertions that copyright even CAN be invalid!

True, Masnick puts quotes around, but like all the anti-copyright rants, his disbelief doesn’t affect the law.

I’m sure that Masnick and fanboys will blithely assert that’s been said all along, but seems new to me! The common law basis of copyright has certainly been flatly denied by fanboys. But I’m willing this once to say maybe it got lost in all the piratey assertions.

In MY view, this is Masnick at last sidling toward admitting what’s been stated here for YEARS (just google for “Fundamentals of Rational Copyright” here at TD). — All that remains is a few practical corollaries, like that greasy blob Kim Dotcom deserves to be jailed!

Anonymous Coward says:

Re: Re: WHAT? After all this time, Masnick ADMITS common law copyright even exists!!!???

Of course. Just look at the writing style. He stopped using the name but the habit of exaggeration and randomly capitalizing certain words and making others bold (that he thinks emphasize a given point) give him away. His writing style is so unique as to give him away each and every time.

Gwiz (profile) says:

Re: Re: Re: WHAT? After all this time, Masnick ADMITS common law copyright even exists!!!???

His writing style is so unique as to give him away each and every time.

There also the fact that Blue doesn’t seem to realize that the phrase “common law copyright” has different definitions.

Blue use the term in the sense of a legal doctrine that is based on the contention that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. Both the US (Wheaton v. Peters, 1834) and the UK (Donaldson v. Beckett, 1774) have rejected the “natural right” aspect of copyright.

Mike uses the term “common law copyright” to refer to state-level copyright which is preempted by federal copyright law. The only time state-level copyright is important is when it covered something that federal copyright law didn’t cover at the time.

PaulT (profile) says:

Re: WHAT? After all this time, Masnick ADMITS common law copyright even exists!!!???

“WHAT? After all this time, Masnick ADMITS common law copyright even exists!!!???

THEN, flop goes all Masnick’s and fanboy assertions that copyright even CAN be invalid!”

I don’t like feeding these idiots, but I have to point out when they lie, and when their fictional universe contains logical errors.

Here, even if we accept the outright fiction that it’s never been accept here that such copyright exists, this post is still nonsensical. Accepting the existence of something does not mean that it’s infallible. In fact, one of the common threads on topics here is how utterly broken copyright is, and how it fails to achieve its stated aim.

Accepting that common law copyright exists does not mean that it cannot be invalid. Your lunatic raving yet again collapses under the weight of its own inconsistency.

“like that greasy blob Kim Dotcom deserves to be jailed!”

If he’s guilty, yes. Nobody here has ever argued that he shouldn’t. But, he deserves due process, a fair trial and a right to defend himself before a foreign government sneaks in and steals all his property, let alone threaten him with prison time. For some reason, you think that’s not necessary. Sorry, even the Nazis got their day in court, you don’t get to bypass peoples’ rights just because you don’t personally like them.

Anonymous Coward says:

Re: Re:

…The Guess Who is on first, followed by The Who. Yes is the featured band. We couldn’t sign Boston…

Somebody actually did a sketch routine in the 1980s with most of that; Who was the first act, Guess Who was the second, and Yes was the third. Boston was never mentioned. The whole routine was based and paced like Who’s On First. But the punch line at the end was classic:

“If we could write we wouldn’t have had to steal this bit!”

But for the life of me I can’t think of the group that did this!

Anonymous Coward says:

God we need copyright reform

We need copyright reform.

I propose 5 14-year, non-automatically renewing terms. That’s 70 years. After that, it’s in the public domain.

Orphaned works transition to the public domain after not more than three years. Not in print, or being pressed to vinyl or CD? Orphaned.

I’d also like to see copyright die with the creator, and there’s no reason why it shouldn’t, but, maybe someday…

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...