- Associated Press - Tuesday, October 11, 2016

NEW YORK (AP) - Producers of a now-closed Broadway play can use Abbott and Costello’s famous “Who’s on First” routine over objections by the comedy duo’s heirs, an appeals court ruled Tuesday.

The 2nd U.S. Circuit Court of Appeals in Manhattan upheld a lower-court judge’s decision last December against heirs who had sued “Hand to God” producers.

That judge had ruled that the play’s use of the routine was so transformative that it constituted fair use of a copyrighted work. The 2nd Circuit disagreed, saying that the play appeared not to have altered the routine at all. But it said the heirs could not win their claim because they could not prove they owned a valid copyright.

The lawsuit, filed in Manhattan federal court last year, claimed the play “copied the very heart” of “Who’s on First?” with a one-minute, seven-second portion that was used so the play could more easily be promoted as a comedy as it confronts dark sides of human behavior.

In the play, an actor uses a sock puppet to perform part of the famous routine almost verbatim.

“The play may convey a dark critique of society, but it does not transform Abbott and Costello’s routine so that it conveys that message,” the three-judge panel said in a decision written by Judge Reena Raggi. ”In sum, nothing in the record shows that the play imbued the routine with any new expression, meaning, or message. Nor does any new dramatic purpose justify defendants’ extensive copying of the routine.” 

Attorney Jonathan Reichman, representing the heirs, said he will ask the panel to reconsider its ruling.

He said lawyers for the heirs were “very happy” that the appeals court agreed that the use of the routine was not transformative but were “very surprised and upset” that the judges concluded they could not prove they had a valid copyright. That part of the ruling, he said, “came out of left field.”

He said the decision did not mean that the routine is now part of the public domain because unfair competition law and trademark law would still protect it.

Abbott and Costello first performed “Who’s on First?” in March 1938 with Lou Costello trying to learn the names of players on a baseball team from William “Bud” Abbott. Laughs ensue when Costello was left perplexed as he grappled with the reality that the first baseman was named “Who,” the second baseman, “What,” and the third baseman, “I Don’t Know.”

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