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.

Filed Under: abbott & costello, copyright, fair use, hand of god, public domain, who's on first

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: abbott & costello, copyright, fair use, hand of god, who's on first