A dreaded sunny day for Abbott & Costello heirs: play made fair use of Who’s On First

TCA Television Corp. v. McCollum, No. 15 Civ. 4325 (S.D.N.Y.
Dec. 17, 2105)
The “critically-acclaimed Broadway dark comedy, Hand to God,” used dialogue from the
iconic comedy routine, Who’s On First?
both in the play and in a promotional video for the play (which sadly, I can’t
find online).  Claiming rights in the
routine, plaintiffs, heirs of Abbott and Costello, sued for copyright infringement,
and the court found fair use on the pleadings.
According to the complaint: Abbott and Costello first
performed the Routine on March 24, 1938, as a live radio broadcast for The Kate
Smith Hour. In November 1940, they signed a work-for-hire agreement with
Universal Pictures Company that assigned to Universal “all the rights to the
duo’s performances of Who’s On First in One
and The Naughty Nineties.” One Night (1940) was the first
publication for 1909 Act purposes; the Routine was then expanded in The Naughty Nineties in 1945.  These films were properly registered and
renewed.  Universal then quitclaimed its interest
in the Routine to the duo’s heirs (through a chain not relevant here).
Accepting all the allegations in the complaint as true, Abbott
and Costello assigned their common law copyright in the Routine to UPC. UPC’s
registration of the initial copyright in One
was “therefore the first time that it obtained [statutory] copyright
under the 1909 Act[,] upon UPC’s registration with the Copyright Office.” The
publication of the Routine within the film then, under circuit precedent, extinguished
the common law copyright in the unpublished version of the Routine.  “Because as much of the 1938 Routine as was
disclosed in the motion picture was published when the motion picture was
published, and because the law treats motion pictures as a unitary works, the
copyrights in One Night and The Naughty Nineties that UPC registered
‘merged’ the Routine with the films.” 
(Citing 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 257-58 (2d Cir. 2015)
(holding that because “[f]ilmmaking is a collaborative process typically
involving artistic contributions from large numbers of people,” statutory
copyright in the film itself could be undermined if “copyright subsisted
separately in each of their contributions to the completed film”).
In Hand to God, “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.”  Tyrone begins in Jason’s mother’s Christian
Puppet Ministry, but “begins to develop a life of its own, possibly due to
demonic possession.”  The use of the
Routine is as follows:
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. (“It doesn’t matter
because he thinks you’re hot.”). 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.
The nature of the work: creative and iconic, weighing in
plaintiffs’ favor.  Amount taken: about
one minute and seven seconds, while the Routine in One Night runs about three minutes and The Naughty Nineties goes almost nine minutes; the play uses a
hybrid of the first thirty-seven seconds of One
and the first minute and six seconds of The Naughty Nineties.  Because even one line, “Who’s on first?” is
instantly recognizable, and the play uses more than that, the amount factor
slightly favors the plaintiffs, though this factor is comparatively less
important than transformativeness.  [Hey,
if it’s a unitary work, how come we aren’t measuring amount by the percentages
of the total films represented by the routine? Here, the qualitative part of
the assessment probably remains similar, but chopping up works into parts has
risks for fair use, which is one supporting justification for the ultimate
holding in Garcia v. Google, cited by
the court here.]
Effect on the market: alleged harm to the licensing market
wasn’t enough; a reasonable observer wasn’t likely to find that Jason and his
puppet’s reenactment of the Routine could usurp the market for the original
Abbott and Costello performance. “Furthermore, Defendants’ transformative use
of the Routine could arguably broaden the market for the original work, as it
exposes a new audience of viewers to the work of the classic American comedy
duo.”  This is even a stronger statement
of this market-enhancing conclusion than that in Google, I think.  Favors
The determinative factor, however, was
transformativeness.  The use of the scene
using the Routine in the promotional video (which might only have images from
the scene, not dialogue, if it’s like others I looked at) showed a commercial
purpose.  Defendants used that clip
because it was representative of the plot, and also was specifically mentioned
in many articles and reviews of the play. 
But commerciality can be discounted in transformativeness cases.
Commentary isn’t necessary. The relevant distinction is whether
the new work “merely ‘supersede[s] the objects’ of the original . . . or
instead adds something new, with a further purpose or different character,
altering the first with new expression, meaning or message.” Creating “a
distinct visual aesthetic and overall mood” for the audience is transformative.  Here, the tone of the new performance was “markedly
different,” using the Routine to create a background for the increasingly
sinister development of Tyrone’s character. 
This creates a new understanding/aesthetic about the relationship
between horror and comedy absent from Abbott & Costello’s performances.  Jason and his hand, rather than two actors,
perform the Routine to contrast his seemingly soft-spoken personality and his
inner nature, which isn’t the same purpose as the original. Though both
performances evoke laughter, that doesn’t matter: the Routine provides comic
relief in the play for reasons that differ from the humor of the original
sketch.  Tyrone breaks the fourth wall
when he tells Jessica that she should recognize the routine—he’s sharing an
inside joke with the audience.  “The
audience laughs at Jason’s lie, not, as Plaintiffs claim, simply the words of
the Routine itself.”  And for the lie to
be apparent, the original needs to be recognizable.

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