Abbott & Costello’s Heirs Lose Appeal But ‘Who’s On First?’ Still Gets Laughs

Jeremy Gerard
Deadline

The U.S. Court Of Appeals this week upheld a lower court’s ruling in favor of the Broadway show Hand To God, while noting that the original District Court judge made the right decision for the wrong reason. Central to the case was playwright Robert Askin’s use of the much-loved Abbott and Costello routine “Who’s On First?” in a key scene from the play, a multiple Tony nominee in 2015.

“[W]e conclude that defendants’ verbatim incorporation of more than a minute of the ‘Who’s on First?’ routine in their commercial production was not a fair use of the material,” wrote Judge Reena Raggi for the three-member panel, in one of the more entertaining long-form reads of the season. “Nevertheless, we affirm dismissal because plaintiffs fail plausibly to allege a valid copyright interest.”

Translation: The original suit, filed by the heirs of Bud Abbott and Lou Costello, charged the playwright and the producers, led by Kevin McCollum, with ripping off the protected material without permission and without paying a royalty. McCollum and Askins argued that 1) the use of “Who’s On First?” — in a scene where the teenage hero Jason performs a good chunk of the routine with his potty-mouthed puppet to impress a girl and then lies, saying he wrote it — fell within the definition of fair use because it was “transformative,” altering the context and point of the original material so much as to change it fundamentally, and 2) that the heirs’ failure to consistently police the use of the sketch effectively nullified their copyright protection.

The play is a black comedy set in a fundamentalist Christian church in Texas, where a hapless young widow is trying to organize a Jesus-friendly puppet pageant. After hearing and reading much testimony, Judge George B. Daniels, ruling last December for the U.S. District Court For The Southern District Of New York, bought the “transformative” argument and didn’t rule on the copyright part of the suit. Daniels argued:

“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.’ “

Indeed, Daniels was moved to dismiss the suit with a parting comic dig:

“Plaintiffs’ federal and New York common law copyright claims are DISMISSED. Because Plaintiffs have insufficiently alleged a copyright infringement by Defendants of the Abbott and Costello Routine, the Complaint doesn’t get past first base.”

You could look it up.

Before we get to Judge Raggi’s careful dismantling of that argument, it’s worth quoting her précis of the routine in question. It’s a model of concision, hilarious in its ability to distill one of the funniest acts in comedic history while draining it of even a single giggle:

Abbott and Costello were a popular mid‐Twentieth Century comedy duo. One of their routines, commonly referred to as Who’s on First? (also, the “Routine”), has become a treasured piece of American entertainment history. The Routine’s humor derives from misunderstandings that arise when Abbott announces the roster of a baseball team filled with such oddly named players as “Who,” “What,” and “I Don’t Know.” A rapid‐fire exchange reveals that “who’s on first” need not be a question. It can be a statement of fact, i.e., a player named “Who” is the first baseman. Later parts of the routine reveal, after similar comic misunderstandings, that a player named “What” is the second baseman, and one named “I Don’t Know” is the third baseman.

Just so you know.

In her 62 page decision affirming the dismissal, Appeals Court Judge Raggi takes considerable pains to examine the “transformative use” argument — and begs to differ with Judge Daniels, revealing that she does, indeed, possess a sense of humor:

Defendants argue that their use was justified by the dramatic need to use an instantly recognizable “cultural” touchstone in the relevant scene. [They] do not explain, however, why Jason’s lie had to pertain to a cultural touchstone, as opposed to any obvious tall tale—e.g., inventing the Internet, traveling to Mars, out‐swimming Michael Phelps…But even assuming defendants’ professed dramatic need, they do not explain why the cultural touchstone had to be the Routine—or even a comedy sketch—as opposed to some other readily recognizable exchange, including those already in the public domain. Most troubling, even if defendants could justify their dramatic need to use a small, identifiable segment of the Routine, that does not justify having their characters perform, verbatim, some dozen variations on the Routine’s singular joke…

In sum, because defendants’ use of the Routine cannot be deemed transformative, and because the record is devoid of any persuasive justification for the extent of defendants’ use, the creative nature of the Routine weighs strongly against a fair use defense.

Judge Raggi then reaches back in history to the original creation of “Who’s On First?” to examine its evolution through various agreements under which Abbott and Costello performed it. Every argument made in favor of copyright protection gets handily smacked down in Raggi’s exhaustively documented opinion:

In sum … we conclude that plaintiffs did not plead their possession of a valid copyright in the Routine, as required to pursue their infringement claim.

Accordingly, even though the district court erred in dismissing plaintiffs’ amended complaint based on defendants’ fair use of the appropriated material, we affirm dismissal based on plaintiffs’ failure plausibly to allege a valid copyright.

Which qualifies, I think as a run on errors.

 

 

 

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