Abbott and Costello heirs strike out in 'Who's on First?' lawsuit

By Nate Raymond
Reuters

By Nate Raymond

NEW YORK (Reuters) - A U.S. appeals court on Tuesday threw out a copyright lawsuit by the heirs of comedians Abbott and Costello against the producers of a Broadway play in which a character performed part of their classic "Who's on First?" routine.

The 2nd U.S. Circuit Court of Appeals in New York ruled that the heirs, while suing the producers of "Hand to God," had failed to establish they held a valid copyright to the routine, which Bud Abbott and Lou Costello first performed in the late 1930s.

"We identify no merit in any of the theories relied on by plaintiffs to support their copyright claim," U.S. Circuit Judge Reena Raggi wrote.

The three-judge panel's ruling was a victory for the defendants, who were the producers, playwright and promoters of "Hand to God." The defendants had argued that "Who's on First?" had fallen into the public domain decades ago.

Lawyers for the play's producers and the comic duo's heirs did not immediately respond to requests for comment.

Abbott and Costello first performed "Who's on First?" on radio in 1938, in which a series of rapid-fire misunderstandings between them followed Abbott announcing a baseball team roster featuring players with such names as "Who," "What" and "I Don't Know."

The routine has become, as Raggi called it, "a treasured piece of American entertainment history." Time magazine in 1999 named "Who's on First?" the best comedy sketch of the 20th century.

The lawsuit followed the Broadway opening early last year of "Hand to God," a dark comedy about a shy adolescent in a Christian ministry using puppets in Texas, whose life is overshadowed by a demonic hand puppet.

The lawsuit contended that the play infringed the copyright for "Who's on First?" by having the lead charter use a sock puppet to perform over a minute of the routine almost verbatim.

(Reporting by Nate Raymond in New York; Editing by Jonathan Oatis)