Broadway Production Scores Home Run over It’s Use of “Who’s On First?” Comedy Routine
Bud Abbott and Lou Costello were a vaudeville comedic juggernaut. Among the duo’s many accomplishments during their heyday was the creation of “Who’s on First?” which is still widely considered one of the most famous comedy routines of all time. But the heirs of Abbott and Costello were hardly laughing when portions of the routine were recently used in the New York City Broadway hit Hand to God. They sued for damages and injunctive relief in the U.S. District Court for the Southern District of New York. The Hand to God producers moved to dismiss, arguing the heirs could not establish “chain of title” to the routine and, even if they could, Defendants were nonetheless shielded by “fair use” under Section 107 of the Copyright Act. Here’s an instant replay of what happened.
First, the Court addressed the threshold question of Who owns What? Because Who’s on First? was originally created in 1938, and was the subject of multiple assignments and transfers, the chain of title issue was a bit thorny and complicated. For purposes of the motion to dismiss, though, the Court found that Plaintiffs had sufficiently alleged a continuous chain of title encompassing the routine.
Next, the Court moved on to the issue at center stage: Fair use. The routine was used in Hand to God by the “shy and repressed” main character, Jason, who “finds a creative escape from his religious small-town life through his hand sock-puppet, Tyrone.” Jason and Tyrone have quite a repartee throughout the show, including one scene where they use just a bit over one minute of Who’s on First? in an attempt to impress Jason’s crush, Jessica. Jason tells Jessica he made up the dialogue but Tyrone interjects calling Jason a liar and that the sketch “is a famous routine from the Fifties.”
Against this backdrop the Court considered the four “fair use” factors. The first two (the nature of the copyrighted work, and the amount used from the copyrighted work) favored Plaintiffs. Assessing the third factor, the Court found that the one minute replay was not likely to harm the market for the original work.
The Court concludes its discussion with the final factor—the purpose and character of the infringing use. Here, the Court notes that the heart of this inquiry is whether the use of the original is “transformative” such that it injects the first with “new expression, meaning or message.” The Court had no trouble finding this standard had been met:
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 plaintiff’s material in order to “avoid the drudgery in working up something fresh.
The Court held that fair use prevailed and that the Complaint simply “doesn’t get past first base.”
This decision is notable for at least a couple of reasons. First, it illustrates the central importance of the final fair use factor. The more transformative the use of the original, the less important all the other factors become. Second, the Court’s analysis was performed within the context of a motion to dismiss, not summary judgment after extensive discovery. Thus, if there is a strong argument for transformative use that is apparent from the allegations in the pleadings, then a Defendant may want to take a swing at moving to dismiss in the first inning rather than waiting for the seventh inning stretch.