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On Sunday, producers of the Broadway play Hand to God will learn if they are the winners of a Tony Award, but they’re also now contending with a lawsuit that claims they’ve violated copyright by using the famous comedy routine “Who’s on First?” by the comedy duo William “Bud” Abbott and Lou Costello.
Who’s bringing the lawsuit?
That would be TCA Television Corporation, owned by Costello’s heirs, and Hi Neighbor, owned by Abbott’s heirs. A third co-plaintiff is Diana Colton, another heir of Abbott. They’re looking to protect the well-known comedy sketch where Abbott attempts to explain to Costello that the name of the first baseman on the baseball field is “Who,” the name of the second baseman is “What” and the name of the third baseman is “I Don’t Know.”
Lead producer Kevin McCollum, playwright Robert Askins and others have made a play about a demonic hand puppet belonging to an introverted student in a religious small town. Running to much acclaim and respectable ticket sales — the complaint says gross ticket sales have approached $3 million in its Broadway run — Hand to God features a scene where the main character performs the “Who’s on First?” sketch to impress a girl before later admitting that it is a “famous routine from the fifties.”
Where’s the “I don’t know” part?
The defendants will probably claim that their use of the “Who’s on First” routine is a fair use much like the way that producers of Jersey Boys successfully defended a lawsuit over use of a clip from The Ed Sullivan Show. That will mean a New York federal court will be exploring the purpose and character of the use, the amount taken, the nature of the copyrighted work, and the effect of the use upon the potential market for “Who’s on First?” licensing.
As to the purpose of its use, the plaintiffs assert in their complaint that “although in Hand to God the routine is being performed by Jason and his puppet rather than the characters used by Abbott & Costello, there is nothing new, different or transformative about the performance of Who’s on First? in the play. The purpose of the scene is exactly the same one which Abbott & Costello had — to elicit laughs, at which it succeeds very well…”
Cutting against the argument is the fact that judges are usually generous when measuring what’s transformative. For example, a judge recently ruled that a play featuring Three’s Company material was permissible and shined new light on the old sitcom despite arguments there was not much new or different.
When it comes to the amount taken, the lawsuit asserts that the “play uses a significant portion of the routine (over a minute) and it represents a significant portion of the play (at least 1% by duration).”
There’s no hard standard on what’s too much to support a copyright claim. It’s fairly subjective.
The nature of the copyrighted work is fascinating in itself. Jokes are notoriously tough to protect by law, but if there’s ever been a comedy routine that would muster intellectual property respect, it’s probably “Who’s on First?” thanks to repeated performances by Abbott & Costello in fixed media and almost universal knowledge of the sketch.
The complaint describes how ownership on the routine passed along through the years since it was first performed on the radio in 1938. Two years later, it was registered at the Copyright Office as part of the 1940 Universal film One Night in the Tropics. Back then, Abbott & Costello didn’t own rights to their routine. Universal did thanks to a work-for-hire agreement that the duo had signed. Costello died in 1959, and Abbott died in 1974, and only in 1984 did their heirs reclaim rights after the film studio executed a quitclaim agreement that allowed Universal to hold onto their Abbott & Costello films while the family got the joke back. (The lawsuit also notes that sound recordings before 1972 aren’t protected by federal copyright protection, but the heirs believe themselves entitled to common law copyrights to the many recordings under New York state law. See more on this topic here.)
In any event, few would doubt that a ballplayer named “What” is creative. As for the other fair use factor of the effect upon the potential market, the plaintiffs say they regularly license “Who’s on First?” for use in live performances, television, film and advertising.
Represented by Marc Rachman and Brandie Lustbader at Davis & Gilbert, the heirs are suing for direct, contributory and vicarious copyright infringement under federal and New York state law. They demand statutory damages, restitution for unjust enrichment, defendants’ profits arising from the alleged infringement, and injunctive relief.
“Filing a lawsuit on the eve of the Tony awards is obviously nothing more than a stunt,” McCollum, told The New York Times. “Frankly, we welcome the attention.”
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