Copyright Lawsuit Over 'Who's On First' Doesn't Get Past First Base

from the fair-use-and-the-public-domain dept

Earlier this year, we wrote about (yet another) ridiculous copyright lawsuit where the heirs of famous people think they must own something just because everything must be “owned.” In this case, it was the heirs of Abbott & Costello, claiming copyright infringement because a Broadway play, Hand of God, uses a bit of the famed “Who’s On First?” routine in the play. You probably know “Who’s On First?” already, right?

The history of this routine is incredibly complicated. It’s arguable as to whether or not Abbott & Costello came up with it in the first place. Going back to the Vaudeville days, jokes like this got passed around over and over again, with each act putting its own spin on it, or just mimicking others. Abbott even performed a version of it before he teamed up with Costello. Some have long argued that the entire bit is clearly in the public domain.

But there are also differences between the text of the bit, and filmed versions of the bit. And some of the filmed versions are clearly in the public domain. But then, Abbott & Costello performed the bit in two different movies in the 1940s: One Night in the Tropics and The Naughty Nineties. Both of those films were produced by Universal Pictures, for whom Abbott and Costello were under contract. Universal held the copyrights on both films. In 1984, Universal transferred the copyrights on just the video clips of that bit to the heirs of Abbott & Costello, which is how those heirs now claim to hold the copyright on the bit itself. Except that’s wrong. They just have the copyright on those two video clips from the movies. The story is complicated even more by the fact that prior to the 1976 Copyright Act, there was no copyright in sound recordings, meaning that the heirs of Abbott & Costello argued a common law copyright under New York’s now defunct state copyrights.

In short: whether there’s even a legitimate copyright here is a real mess — but even the parts that do have copyright don’t seem to apply to the Hand of God, which is a story involving a puppeteer, who at one point performs a bit of Who’s on First with puppets. The play is a serious play, not a comedy and clearly no one’s seeing that as an alternative to seeing any of the numerous Abbott & Costello recordings.

And thus, even if there were a copyright there, it’s pretty obviously fair use. The use is totally transformative and is used in a different way for a different purpose and doesn’t take away from the market for Abbott & Costello’s version in any way. And the ruling in the case finds easily for the play and against the heirs of Abbott & Costello, but, given all of the above, the ruling is a bit complex.

First, it rejects the idea that because Abbott & Costello performed the routine prior to those movies, the work was already “published” and in the public domain. It also rejects a variety of other arguments (some of them fairly compelling) that says the work is in the public domain. The court doesn’t fully support the idea that the work is under copyright, but notes at this stage of the case (judging a motion to dismiss) it needs to judge the complaint in the light most favorable to the plaintiffs, and thus it accepts that the copyright is valid.

But then it says that the use here is clearly fair use, going through the usual four factors. On the first factor (the nature of the work) the court notes this one leans towards the heirs of Abbott & Costello, but also note this factor really isn’t that important. On the second factor (the amount of the work), things again lean towards the heirs, even though the routine in the play is only a little over a minute long, consisting of a “hybrid” from the two movie versions of the bit: about 37 seconds from the 3 minute version of the bit in One Night in the Tropics and one minute and six seconds out of the nine minute version of the bit in The Naughty Nineties. The court notes that even though this is just a small part of the bit, the beginning of the bit (which is the part done in the play) is the most recognizable part, and thus substantial. Still, the court argues that this only “tips this factor slightly in favor” of the heirs.

The third factor (the impact on the market) weighs easily in favor of the play:

It is unlikely that a reasonable observer of the new work would find that Jason and his puppet’s reenactment of the Routine could usurp the market for the original Abbott and Costello performance of the Routine…. Furthermore, Defendants’ transformative use of the Routine could arguably broaden the market for the original work, as it exposes a new audience of viewers to the work of the classic American comedy duo…

And then we get to the big one: the fourth factor that is often used to tip the scales entirely, as it does here, and that’s the “purpose and character” of the use. Here, the court rightly notes that the use is totally transformative:

Whereas the original Routine involved two actors whose performance falls in the vaudeville genre, Hand to God has only one actor performing the Routine in order to illustrate a larger point. The contrast between Jason’s seemingly soft-spoken personality and the actual outrageousness of his inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small town in the Bible Belt. Thus, Defendants’ use of part of the Routine is not an attempt to usurp plaintiffs material in order to “avoid the drudgery in working up something fresh.” … Nor is the original performance of the Routine “merely repackaged or republished.”…

Furthermore, Plaintiffs’ contention that “the scene in the Play is performed … for the same exact purpose-for audience laughs”- cannot defeat the transformative use argument…. While the Routine, as performed in the play, also results in comic relief for the audience, it does so for reasons different from why audiences found the original sketch humorous…. Tyrone, the sock puppet, breaks the “fourth wall” with the audience when he says to Jessica, “You’d know [Jason didn’t make the Routine up] if you weren’t so stupid,” sharing with them an inside joke…. The audience laughs at Jason’s lie, not, as Plaintiffs claim, simply the words of the Routine itself…. For the lie to be apparent, the play requires that the audience be able to recognize the original source of Jason’s sock puppet performance…. This statutory factor, therefore, weighs strongly in favor of Defendants. “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

And that tips the scales and makes the use clearly fair use, leading to the case getting tossed. It’s too bad the court didn’t also make it clear the work is in the public domain, because it almost certainly is, but at least this is an overall victory against yet another attempt at overly abusive copyright claims by heirs.

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Comments on “Copyright Lawsuit Over 'Who's On First' Doesn't Get Past First Base”

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Anonymous Coward says:

I’m still not sure how a live performance of spoken words can violate copyright law in the first place. They didn’t use video or audio of Abbott and Costello performing the routine so no copy is being made. The script might contain the words from the routine, but if it’s not a published script, it’s hard to claim copyright infringement there. A performance of a live play or vaudeville routine is not copyrightable unless audio or video recorded. So how does this even fall under copyright law?

jupiterkansas (profile) says:

Re: Re: Re: Re:

You can’t copy a performance, but you can copy the words underly a performance. The script you’re performing from is tangible – that’s why you have to get rights to perform a play, or why I can’t just buy a movie script and perform it live without permission. You need a license to perform written works that are meant to be performed, like songs and plays, but you’re free to copy non-tangible things like choreography.

Anonymous Coward says:

Too long

Copyright terms last entirely too long. The purpose of copyright is not intended to allow the author, and any heirs, to collect royalties and control usage of copyrighted material for a period longer than the lifespan of 100% of the world’s population.

Copyright is intended to force works into the public domain after a limited period of time, and if the authors want a continuing income stream, they have to produce new works.

At least that’s how copyright is supposed to work.

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