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

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.

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