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The Who’s On First Copyright Fair Use Case

If you’re like me, and you’re a fan of copyright fair use and old-timey comedy, you’ll love this one.

Bud Abbott and Lou Costello were one of the biggest comedy teams in the middle of the 20th Century. They’re probably best known these days for their “Who’s On First?” routine:

Abbott and Costello’s heirs sued the producers of the Broadway comedy Hand to God, claiming that the unauthorized and unlicensed use of roughly one minute of “Who’s On First?” during the play constitutes copyright infringement.

For the purposes of this blog post, and in the spirit of old-timey comedy, we’ll call the producers of Hand to God The Producers. Abbott & Costello’s heirs will be called The Heirs. OK? OK.

The Producers moved to have the case dismissed on the grounds that their use of the routine was a fair use under the U.S. Copyright Act.

Need a refresher on Copyright Fair Use? Check out my presentation What Is Fair Use? here.

Here’s the court’s description of how the routine is used in the play:

Jason, the play’s shy and repressed main character, finds a creative escape from his religious small-town life through his hand sock-puppet, named Tyrone…Over the course of the play, Tyrone, the puppet, begins to develop a life of its own, possibly due to demonic possession. About fifteen minutes into the play, Jason attempts to impress his crush, Jessica, by performing about one minute and seven seconds of the Routine, with Tyrone as Costello and Jason as Abbott. Impressed, Jessica asks Jason if he made up the dialogue himself, and he says “yes.” The audience is intended to recognize the famous Abbott and Costello sketch and find humor when Tyrone, the puppet, calls Jason a liar and tells Jessica that the sketch “is a ‘famous routine from the Fifties.”‘ The puppet proceeds to insult Jessica, saying, “You’d know that if you weren’t so stupid,” and then exposes Jason’s feelings for Jessica. Providing a contrast with the soft-spoken Jason, the puppet Tyrone’s outrageous and subversive behavior escalates over the course of the play, and its post-Routine outburst provides a starting point for the gradual exposure of the darker side of Jason’s personality.

So it’s just your typical play about a demonic sock puppet slash comedian.

This case was eerily similar to the Jersey Boys case, in which the 9th Circuit Court of Appeals held that the use of a clip from the Ed Sullivan Show in the Broadway musical Jersey Boys was copyright fair use because it was “transformative.” You can read more about that in this blog post.

In that blog post, I wrote:

The issue of transformative use relates to the first (and, typically, most important) factor, the Purpose and Character of the Accused Use. Recent cases have focused on this factor and honed in on the question of whether the use is “transformative.” The state of the law seems to be that if a court finds a work to be transformative, it’ll qualify for fair use protection. From Dhillon v. Does 1-10, 2014 WL 722592 (N.D. Cal. Feb. 25, 2014):

“Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.”

As in the Jersey Boys case, the District Court in the “Who’s On First?” case found the use to be transformative, and therefore dismissed The Heirs’ case. You can read the court’s opinion here.

Why was the use transformative? I’ll let the judge answer that:

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.”

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. (“Added value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it.”). 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.

So, in a sense, the court found this use to be transformative because the audience has to recognize the reference in order for the use of the “Who’s On First?” routine to be funny in this context.

What Does This Mean for Content Creators?

The trend of liberalizing copyright fair use through application of the “transformativeness” test is continuing. This case shows that, if you use part of another copyrighted work without permission, but you place that work in a new context so that it serves a different function, courts are more likely than ever to allow a defense of fair use.

However, it’s important to remember that a legal argument about fair use only comes into play once you’ve been sued. The Hand to God producers had to spend a lot of time and money taking this case to court, and it’s not impossible that The Heirs will appeal. The producers of a hit Broadway play may have the resources to defend a copyright infringement claim and raise a fair use defense, but some content creators may not have the financial wherewithal to defend themselves. So it’s still best for content creators to be very careful about using any part of someone else’s work without permission.

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