Court OKs use of ‘Who’s on First’ rou­tine in play

Daily Freeman (Kingston, NY) - - OBITUARIES - By Larry Neumeis­ter

NEW YORK >> 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 low­er­court 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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