According to a court filing on Monday, music publisher Warner/Chappell will pay $14 million to end a lawsuit challenging its hold on the English language's most popular song, "Happy Birthday to You."
This is indeed a large payoff, one that indicates Warner/Chappell is not willing to test the merits of its case in front of a jury. The merits of the case, of course, are pretty much some random assertions with little documentation to back them up, but assertions that have, nonetheless, allowed Warner to obtain an estimated $50 million in licensing fees over the years. The $14 million Warner will pay is roughly in line with what it expected to make during the remaining years of the copyright term.
Warners was expecting to have "Happy Birthday" under copyright until 2030. An IP valuation expert retained by the plaintiffs estimated that the song was to reap between $14 million to $16.5 million in the next 15 years.
$4.62 million will be headed to the plaintiffs' attorneys with the rest being split among qualifying members of the class. But what's far more interesting is what the plaintiffs have asked the judge to approve.
The Settlement includes an express agreement by Defendants and the Intervenors to forego collecting any more fees for use of the Song, saving the Settlement Class millions of dollars. In addition, if approved by the Court, by declaring the Song to be in the public domain, the Settlement will end more than 80 years of uncertainty regarding the disputed copyright.
As it stands now, the ownership of the song is still up in the air. Warner doesn't own it but no definitive declaration has been made as to who holds the rights. Lots of people made the assumption that Warner's lack of ownership = public domain, but that's not what the court has determined to this point. If the court pursues this -- and the information compiled to this point points to this conclusion -- we could see "Happy Birthday" finally remanded to the public domain.
If the court decides this isn't going to be part of the agreement, the song will still reside in legal limbo. All anyone will know for sure is that Warner won't be coming after them for using the song. But the heirs of Patty and Jessica Hill -- the sisters who wrote the lyrics -- might. The charity run by the heirs has already entered a motion to intervene, claiming if Warner doesn't own, then it does. If the judge declares the song to belong to the public domain, that's $14-16 million the heirs won't be collecting. It might go the plaintiffs' way, considering the judge's decision suggested the Hill's abandoned the copyright years ago (and may not have actually written the lyrics, either). There's a substantial amount of money at stake here and it's highly unlikely the Hills' heirs will let it go without a fight -- even if it's nowhere near certain they have any claim to the copyright at all.
A few weeks ago, we wrote about some details from the court hearing in the ridiculous monkey selfie case in which PETA (the People for the Ethical Treatment of Animals) claimed not only that it represented Naruto, an Indonesian macaque monkey, but that the monkey should hold the copyright on this selfie:
However, as we've explained time and time again (much to the chagrin of David Slater, the photographer whose camera was used to take the photo), the photo is clearly in the public domain, as it's long been held that the Copyright Act only applies to human authors. In court a few weeks ago, the judge made it clear he didn't believe PETA had any case at all, but Judge William Orrick has now come out with his written opinion in the case explaining his reasoning why. Not surprisingly, it more or less tracks with what he said in court: there is no evidence that the Copyright Act applies to monkeys, and thus, case dismissed -- with leave to amend. The judge cites numerous cases in which the courts clearly say the Copyright Act means a "person" when it refers to author... and PETA cited a grand total of zero cases that argued otherwise:
Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (“[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be.”) (internal quotation marks, citations and modifications omitted) (emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (“For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”) (emphasis added); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection.”) (emphasis added). Despite Next Friends’ assertion that declining to grant a monkey copyright to a photograph “would depart from well-established norms,” Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals.
And the judge is also convinced by the Copyright Office rejecting non-human copyrights as well:
Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (the “Compendium”). “When interpreting the Copyright Act, [the courts] defer to the Copyright Office’s interpretations in the appropriate circumstances.”... In section 306 of the Compendium, entitled “The Human Authorship Requirement,” the Copyright Office relies on citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it “will register an original work of authorship, provided that the work was created by a human being.”... Similarly, in a section titled “Works That Lack Human Authorship,” the Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”... Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey.”
And thus, sucks for Naruto (and PETA):
Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” ... Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not.
We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.
Every year at the beginning of January, we post a story about all the works that should be entering the public domain in the US, but aren't. That's always based on a blog post from Duke's Center for the Study of the Public Domain, which is led by professor James Boyle. Every time we do this, some people seem to ask what's such a big deal about the public domain anyway, and I usually like to point such people to Boyle's own book on the subject: The Public Domain: Enclosing the Commons of the Mind.
The book is a wonderful exploration about the public domain, why it's important and how problematic it is that it's been systematically cut off and starved. And, yes, before you ask, if you want a free copy of the book that's available too (though, obviously buying a copy supports both Boyle and us (if you use our Amazon link above). Beyond being educational about the public domain, the book is very readable and entertaining as well. For some reason, people who aren't immersed in this stuff sometimes think that issues like the public domain need to be dry and boring, but much of it is really fascinating. If you don't feel like reading the whole book, but just dipping in for parts, I highly recommend Chapter 6, entitled I Got a Mashup. Though, once you read that, it hopefully will make you want to read the entire thing. I've found it one of the most useful books in showing just why the public domain is so important, and why it's so disastrous that it's been closed off for so long.
There's some wonderful news from the NY Public Library, which has released over 180,000 high resolution digital images of public domain works that it found in its collection. We've seen too many organizations, mainly museums, try to claim copyright over public domain works, or otherwise limit access. The NY Public Library, on the other hand, is going the other direction. Not only are they releasing these works and making it clear that the works are in the public domain, but they're releasing them as high resolution images and actively encouraging people to make use of them.
In an interview with the NY Times, there are some fantastic quotes showing how seriously they take this. This isn't just an "Oh, here, let's dump some public domain material." The NYPL is taking this seriously:
“We see digitization as a starting point, not end point,” said Ben Vershbow, the director of NYPL Labs, the in-house technology division that spearheaded the effort. “We don’t just want to put stuff online and say, ‘Here it is,’ but rev the engines and encourage reuse.”
And others are noticing as well:
“It’s not just a data dump,” said Dan Cohen, the executive director of the Digital Public Library of America, a consortium that offers one-stop access to digitized holdings from more than 1,300 institutions.
The New York Public has “really been thinking about how they can get others to use this material,” Mr. Cohen continued. “It’s a next step that I would like to see more institutions take.”
And part of this is about actually making the damn stuff useful, so they're creating APIs to do more with the collection as well. And they've launched a Remix Residency program to encourage creators to create amazing new works building on all this public domain culture. They also have some cool examples to inspire other ideas, such as Mansion Maniac, an online game letting people explore mansion floor plans from early 20th century New York. More recent plans would be fun too, but sorry kids, those are locked up under copyright. There's also another example, using images of New York City streets in 1911 and mashing them up with Google's street view images of today.
There's lots of fun stuff in the collection as well, including a ton of old maps, and other oddities. For example, playing around, I found what looks like an old "check" written by Thomas Jefferson:
Or how about this menu for breakfast at the Tremont House in July of 1859:
This is a very cool collection and hopefully more libraries will take the hint... and that many people will make useful things out of this collection.
As you know, we've been covering PETA (People for the Ethical Treatment of Animals)'s absolutely insane lawsuit claiming to represent the monkey who took this selfie:
We'd been covering the story of that selfie for years, since first noting that it was almost certainly in the public domain, as copyright law only recognizes human authors. This discussion spurred not one, but two, separate legal threats made against us by representatives of David Slater, the guy whose camera the monkey used. It's also gotten Wikipedia involved (after Slater asked the site to not allow the image to be used, while Wikipedia agreed with us that the image is public domain).
However, the case took a turn towards the absolutely surreal when PETA stepped in, claimed that it represented the monkey (which it decided is named "Naruto") and that the monkey did, in fact, hold the copyright. It also sued Slater, who despite saying mean things about us in particular, we side with in this case in at least saying that PETA has zero claim, and it's ridiculous that they've dragged Slater into court. Since then, the legal arguments have been increasingly surreal.
Yesterday in San Francisco, Judge William Orrick, held a hearing over the request by Slater (and his publishing partner Blurb, who is a co-defendant) to dismiss the case entirely, because it's about a freaking monkey copyright. The judge, apparently, was somewhat amused by the whole situation, but did not appear even remotely sympathetic to PETA's arguments (for which, I should remind you, the organization is using a very well-known IP law firm, Irell & Manella). Judge Orrick didn't dismiss the case outright, but rather gave PETA a chance to amend the suit after noting some issues with it as it stands. PETA now has to decide if it's even worth it to submit a new complaint, recognizing that the judge may not be particularly open to their whole "animals can get copyright" arguments.
Reporter Sarah Jeong, who attended the hearing, noted some of the more insane arguments from PETA's lawyers (again, from a big, well-recognized law firm), including the idea that "if there's an author, it follows that there must be a copyright" (that's flat out false), and if there's "value" in the image, that also means there must be a copyright. Wrong wrong wrong wrong. And thankfully, the judge appears to recognize that. Oh, and how can I forget the argument that this is just like how slaves couldn't own patents before the 14th Amendment. Except this case is nothing like that (at all).
Anyway, the case isn't over yet. PETA might decide to walk away, but since this is all just a giant publicity stunt for PETA (don't worry, we didn't forget that!), that seems unlikely. It's likely that they'll try again and get laughed out of court.
Michael Geist is counting down the days to when the TPP can first be signed in the US (February 4th) by going through and highlighting problematic aspects of the agreement. He's started with the simple fact that the TPP's intellectual property section is explicitly designed to favor corporations over the public. We've obviously discussed some of this ourselves, such as the fact that the only reference to things like the public's rights (such as fair use) is to recommend that countries consider them, but when it comes to stronger copyright and patents, the TPP requires them.
Geist goes a bit further, looking at the history, noting that in early drafts, a group of countries including Canada, New Zealand, Chile, Peru, Vietnam, Brunei, Malaysia, Singapore and Mexico initially all supported objectives that emphasized the public's rights as well as corporations'. But, with the final version, basically all of that went out the window, and almost entirely because of the US striking a hard line in the negotiations (with some help from Japan, who joined the TPP process a bit later than others).
Below were the originally proposed "objectives":
The objectives of this Chapter are:
enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;
reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;
maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property;
protect the ability of Parties to identify, promote access to and preserve the public domain;
ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.
the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
support each Party’s right to protect public health, including by facilitating timely access to affordable medicines.
There are some pretty good points in that list. I especially like ensuring that intellectual property does not, itself, become "barriers to legitimate trade."
But, you'll notice basically none of that in the final version. Instead, the only thing that survived was one that, you guessed it, focuses more on the benefits to companies, than to the public:
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
It's not a bad objective by any means, but it's pretty naked without all the others listed above.
As Geist notes:
The objectives provision may not carry the same weight as positive obligations in the treaty, but they are important, reflecting the goals of the negotiating parties and providing a lens through which all other provisions can be interpreted. Canada and many other countries wanted to ensure that the lens promoted maintaining a balance between rights holders and users on all IP provisions. The exclusion from the objectives provision sets the tone for the IP chapter and highlights how user interests and the priorities of countries such as Canada were given limited weight within the final text.
All the more reason to question how this possibly benefits the public.
Anne Frank and Adolf Hitler both died in 1945 -- with Frank's death being caused by Hitler. European law (for now) says that copyright lasts 70 years "after death" of an author, and that means that the published writings of each of those individuals are now in the public domain in Europe -- though there's serious controversy about both. Even though we won't see any new public domain works here in the US for quite some time, over in Europe, at least some works are able to enter the public domain each January 1st.
As we noted a couple months ago, the Anne Frank Foundation (Anne Frank Fonds) has been lying and telling people that Frank's father, Otto Frank, is a co-author of the diary and therefore the copyright doesn't expire until 70 years after his death. Otto Frank, obviously, did quite a lot to get his daughter's diaries published and spread around the world. And for that, people should be thankful. But the attempt to keep the work under copyright is shameful and pure copyfraud, and it tarnishes the image of the Anne Frank Fonds, which has done much good in the world.
And while the Foundation insists that it will fight any plans to release the book, it appears that many are ignoring such threats. French Parliament member Isabelle Attard, who has been vocal in criticizing the copyfraud attempt, has posted a copy of the text in the original Dutch on her personal website. Meanwhile, the Internet Archive appears to have the full text in English, though it actually appears to be a later edited version of the diaries, which is not in the public domain (though the Archive says it's relying on fair use for the posting).
And now we wait to see if the promised legal action follows...
Meanwhile, over in Germany, Hitler's Mein Kampf is available for the first time in decades. As we've discussed in the past, the copyright story on Mein Kampf is somewhat bizarre. The US government seized it after the end of World War II, and then transferred it to the government of Bavaria, who used it to bar all printing of the book in Germany. There had been some panic that making the book available would increase neo-Nazi sentiment in Germany, but it also might better educate the public on the insanity that was Adolf Hitler. As we noted last year, there was also a bizarre instance back in the 1930s when future Senator Alan Cranston tried to publish Mein Kampf in America to show just how batshit crazy Hitler was (an officially published version in the US had been watered down to hide much of the craziness) -- and Hitler and his publisher sued over the publication, helping to get the original Mein Kampf censored in the US.
The new version being released in Germany is (smartly) an annotated version "with thousands of academic notes, [which] will aim to show that Mein Kampf (My Struggle) is incoherent and badly written, rather than powerful or seductive."
Still, German officials claim that they are going to try to "limit public access" to the original text, even though it will be (and, let's face it, already is) widely available on the internet.
Each year, for the past few years, the wonderful Center for the Study of the Public Domain at Duke University publishes a blog post highlighting key works that should have entered the public domain on January first, but did not. And each year, we write about it again. Here is the list for 2016. These are mostly works that were published in 1959. Under the law at the time they were created, the maximum copyright term was 56 years, and that apparently was more than enough of a bargain for the work to be created. That we retroactively extended those works, taking away the public domain for no actual benefit, remains a travesty. The list includes books like Robert Heinlein's Starship Troopers, William Burroughs' The Naked Lunch, Richard Condon's The Manchurian Candidate, and Strunk and White's famed The Elements of Style. Films that should be in the public domain today include Ben-Hur, North by Northwest, and Some Like It Hot. The original season of the seminal Rocky and Bullwinkle show would also be in the public domain.
Not surprisingly, if horrifically disappointingly, the blog post points out that many of the movies that should be going into the public domain were, themselves, built on public domain works:
Many of these movies were built on public domain works. Ben-Hur was based on Lew Wallace’s novel Ben-Hur: A Tale of the Christ (1880). Sleeping Beauty drew on fairy tales including Charles Perrault’s La Belle au bois dormant (1697) (itself based on earlier fairy tales) and the Brothers Grimm’s later version of Perrault’s story (1812). Journey to Center of the Earth adapted Jules Verne’s 1864 novel of the same name. One work inspires another. That is how the public domain feeds creativity.
But if you wanted to continue to build on those works, too fucking bad. What a massive loss to culture.
The post also details music that should be in the public domain (including Miles Davis' Kind of Blue and the original score to The Sound of Music). Even more terrible is scientific research that is still locked away:
1959 was another noteworthy year for science. C. P. Snow presented The Two Cultures and the Scientific Revolution, an influential lecture about the gulf between the sciences and the humanities. The programming language COBOL was developed. Martin Gardner published the Three Prisoners Problem, a probability theory paradox, in his “Mathematical Games” column in Scientific American. Giuseppe Cocconi and Philip Morrison published Searching for Interstellar Communications, a foundational work for the search for extraterrestrial intelligence, in the journal Nature.
If you follow the link from Nature above (and you do not have a subscription or institutional access), you will see that this 1959 article is behind a paywall. You can purchase it for $32. A distressing number of scientific articles from 1959 require payment or a subscription or account, including those in major journals such as Science and JAMA. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.
I hate writing this post each year. It's incredibly depressing. What's worse is when we see people who claim to support "artists' rights" or who claim to be supporters of culture not realize how damaging this is to their own creative output. The usual refrain of "just make your own work" is so ignorant as to be laughable. Everyone builds on the works of those who came before, but thanks to all of this copyright extension we're seeing culture disappear into a giant blackhole. And, even worse, rather than fix this problem, the US government seems focused on making it worse. The TPP agreement would block the US from being allowed to roll back copyright terms, while forcing many other countries to extend their own copyright terms.
It is difficult to see how anyone can support such blatant destruction of culture.
In the fall of 2014, we wrote about a plan by public documents guru Carl Malamud and law professor Chris Sprigman, to create a public domain book for legal citations (stay with me, this isn't as boring as it sounds!). For decades, the "standard" for legal citations has been "the Bluebook" put out by Harvard Law Review, and technically owned by four top law schools. Harvard Law Review insists that this standard of how people can cite stuff in legal documents is covered by copyright. This seems nuts for a variety of reasons. A citation standard is just an method for how to cite stuff. That shouldn't be copyrightable. But the issue has created ridiculous flare-ups over the years, with the fight between the Bluebook and the open source citation tool Zotero representing just one ridiculous example.
In looking over all of this, Sprigman and Malamud realized that the folks behind the Bluebook had failed to renew the copyright properly on the 10th edition of the book, which was published in 1958, meaning that that version of the book was in the public domain. The current version is the 19th edition, but there is plenty of overlap from that earlier version. Given that, Malamud and Sprigman announced plans to make an alternative to the Bluebook called Baby Blue, which would make use of the public domain material from 1958 (and, I'd assume, some of their own updates -- including, perhaps, citations that it appears the Bluebook copied from others).
There hadn't been much said publicly in the 14 months or so since that announcement, but last week, Malamud started tweeting out some evidence that the book was nearing completion:
Laying BB 20 and Baby Blue neck to neck. Drinking whiskey while wrestling the future of legal citation to ground. pic.twitter.com/F2IRR4gL9y
Apparently, this sent the Harvard Law Review into a bit of a tizzy, and they made their lawyers at the big, respectable law firm of Ropes & Gray come into the office on Christmas Eve to dash off this ridiculous threat letter to Malamud and Sprigman, demanding that they not move forward with releasing Baby Blue.
First, they ignore all the facts concerning how an earlier version fell into the public domain (and the ridiculousness of claiming copyright on citations) and again allege it will be infringing:
I write concerning Mr. Malamud’s recent Twitter postings, including several in the last few days,
disclosing your imminent release of an “implementation of the Bluebook’s Uniform System of
Citation” called “BabyBlue,” possibly as soon as December 31, 2015. Based on the description of
“BabyBlue” in these and other postings, Prof. Sprigman’s November 25, 2015 interview in the NYU
Journal of Intellectual Property & Entertainment Law, and earlier correspondence from each of
you, we believe that “BabyBlue” may include content identical or substantially similar to content or
other aspects of The Bluebook that constitute original works of authorship protected by copyright,
and which are covered by various United States copyright registrations.
For the reasons set forth in our previous letters to Mr. Malamud dated July 2013 and May 2014
(copies of which are attached), my client has been and remains concerned that the publication and
promotion of such a work may infringe the Reviews’ copyright rights in The Bluebook and The
Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and
interests in those works.
And then they go on, in even more of a huff, claiming that the name BabyBlue would be trademark infringement, and warn them that they cannot make use of the word "blue" anywhere. Apparently, Harvard Law Review thinks it owns the word "blue" when applied to legal citations.
On a related issue, it appears from the NYU interview and the Twitter postings – including a
photograph attached to one posting – that you intend to use the title “BabyBlue,” and the subtitle “A
free, Creative Commons-licensed implementation of the Uniform System of Citation” in the version
of your work released to the public. In addition, the pages shown in that photo include several
explicit references to The Bluebook.
Please be advised that the Reviews are the collective owners of the registered trademarks THE
BLUEBOOK (U.S. Reg. No. 3,756,727), THE BLUEBOOK ONLINE (U.S. Reg. No. 3,748,511),
and THE BLUEBOOK A UNIFORM SYSTEM OF CITATION (U.S. Reg. No. 3,886,986)
(collectively, the “BLUEBOOK Marks”). Given these rights, it is our client’s position that the title
“BabyBlue,” or any title consisting of or comprising the word “Blue,” when used on or in
connection with your work, would so resemble the BLUEBOOK Marks as to be likely, to cause
confusion, mistake, and/or deception (including over whether “BabyBlue” was associated with or
sponsored or approved by the Reviews), to the considerable detriment of the Reviews and in
violation of their rights under the federal Lanham Act and state law. The same is true for the
subtitle, which includes a portion of one of the registered BLUEBOOK Marks, and which suggests
that “BabyBlue” is a “licensed implementation” of The Bluebook (which it is not). Likewise,
several references to The Bluebook shown in the photo could reinforce the false and misleading
impression that your work was associated with or approved by the Reviews.
Accordingly, and to avoid any risk of consumer confusion, my client respectfully demands that you
agree (i) not to use the title or name “BabyBlue,” or any other title or name including the word
“blue,” for your work, and (ii) not to include any other statement, phrase, word, term, name,
symbol, device, subtitle, statement, or image in your work, or in the advertising or promotion of that
work, that may be likely to cause confusion, mistake, or deception as to the source of “BabyBlue”
or as to its affiliation, connection, or association with, or sponsorship or approval by, the Reviews.
Touchy, touchy. Harvard Law Review seems really, really worried that they might face some public domain competition, huh?
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.
