Who’s on First? Depends if Fair Use is on Second and Public Domain is on Third

Originally published by Travis Crabtree.

Abbott and Costello’s “Who’s on First?” brings back memories of my seventh-grade talent show where I performed the routine with Brandon Berry at Atascocita Middle School.  I can’t remember if we won second or third place — there was stiff competition at AMS and someone with real talent actually won.

It’s a good thing I did not record the performance and then try to monetize it on YouTube which luckily wasn’t around in 1987.

The people involved with the Tony-nominated play “Hand to God” have other concerns. The play has a scene where the lead does the routine using hand-puppets and now the heirs of William “Bud” Abbott and Lou Costello have sued for copyright infringement.  The lawsuit is here.

So Who, What and I Don’t Know are on defense? That’s Fair.

First you have to figure out if the plaintiffs own the copyright.  According to the lawsuit, the plaintiffs state the copyright was originally held by Universal Pictures Co. after the act appeared in Universal’s One Night in the Tropics film in 1940 pursuant to a work for hire agreement with the two actors.

Then, in 1984, Universal transferred its copyright of the audio/visual depictions from the movies back to the heirs.  Because of the lack of copyright protections for pre-1972 sound records, the plaintiffs admit the sound recordings were not subject to their federal Copyright Act, but the plaintiffs claim they have a New York “common law” claim.   (see the issues facing Sirius/XM in this regard)

The most likely defense will be that the use of the routine was fair use.  Fair use is an affirmative defense to a copyright violation.  Fair use is a factually-specific inquiry and there is no bright line test. Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Jokes and the dramatic arts have had some interesting fair use issues (the Jersey Boys use of Ed Sullivan and an entire production based on the sitcom Three’s Company for example)

According to The New York Times, the plaintiffs’ lawyer says there can be no fair use because “’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.”

Why do I think fair use will ultimately prevail?  Because.  Maybe not Today or Tomorrow, but naturally the evidence will show that people are not going to the play just to see that one minute routine within the full production.  However, if the “The Hand of God” can use, why not everyone else which could have a big effect on the potential market for the copyrighted work.  Perhaps the unnamed right fielder should decide.

What about “I Don’t Give a Darn?” Is he in the Public Domain or at Short?

Just because the routine is available on YouTube does not mean it is in the public domain. As mentioned above, the copyright may cover just the script and limited recorded performances in the movies.  The routine has been done many times by many people.  It is not exactly clear who actually wrote the routine and Abbott allegedly performed the skit before he teamed up with Costello.

Plus, Abbott and Costello did not exactly follow a script when they performed it.  While I could almost recite it by memory, I know the version Brandon and I did was different than the one below.

This does not qualify the skit for “public domain” in the strict legal sense.  This article says some of the particularities about renewing the copyright to keep it alive may be challenged.  According to the lawsuit, the plaintiffs do license the routine for public performances, so they certainly have incentive to try and protect it.

So, who wins the game?

As usual, the lawyers will win.  I am now interested in seeing the play and have watched the Abbott and Costello video again, so maybe everyone wins and Who’s wife will come down and pick up the checks.

The post Who’s on First? Depends if Fair Use is on Second and Public Domain is on Third appeared first on eMedia Law Insider.

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