The US Court of Appeals for the Second Circuit determined that a Broadway play’s verbatim use of William “Bud” Abbott and Lou Costello’s “Who’s on First?” comedy routine was not a transformative fair use, but nonetheless affirmed the district court’s dismissal of the infringement claim because the plaintiffs could not establish that they owned a copyright for the routine. TCA Television Corp. v. McCollum, Case No. 16-134 (2d Cir., Oct. 11, 2016) (Raggi, J). 

Abbott and Costello’s heirs sued the producers of the Broadway play “Hand to God” for copyright infringement over the unauthorized use of the iconic “Who’s on First?” comedy routine. The comedy skit consists of a conversation between Abbott and Costello featuring humorous misunderstandings that arise when Abbott announces a baseball team roster of players named “Who,” “What” and “I Don’t Know.” “Hand to God,” a dark comedy critiquing the social norms of a small, religious Southern town features a verbatim recital of the routine when the main character reenacts “Who’s on First?” to impress a girl.

The district court dismissed the infringement claim as a matter of law, finding that the play’s use of “Who’s on First?” was a transformative non-infringing fair use based largely on the fact that the purpose and character of the use (the first of four statutory factors for fair use) were vastly different from the humor of the appropriated routine. The Second Circuit, however, disagreed, stating that

the focus of inquiry is not simply on the new work, i.e., whether that work serves a purpose or conveys an overall expression, meaning, or message different from the copyrighted material it appropriates. Rather, the critical inquiry is whether the new work uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created.

Thus, while the play itself differed from the “Who’s on First?” routine, the unaltered, verbatim use of the routine in the play was not transformative because it did not use the routine for a different purpose, nor did it add any new message, meaning or expression. 

The Second Circuit also found that the other three statutory factors for fair use weighed in favor of the plaintiffs, namely, (1) the nature of the copyrighted work, (2) the amount and substantiality of the portion used as compared to the copyrighted work as a whole, and (3) the effect of the use on the market or value of the copyrighted work.

Although the Second Circuit found that the district court erred in finding the play’s use of “Who’s on First?” transformative, it nonetheless upheld the dismissal of the infringement claim for failure to plead a valid copyright. Defendants argued that the copyright for “Who’s on First?” fell into the public domain in 1968, but the plaintiffs argued ownership of a valid copyright based on theories of assignment, work-for-hire and merger, none of which the Court ultimately found sufficient to plead ownership of a valid copyright as a matter of law.