Cutting Through the Confusion: The Second Circuit Decides Who’s on First

Cutting Through the Confusion: The Second Circuit Decides Who’s on First by Mark KaufmanThe Second Circuit Court of Appeals has just rendered a decision regarding the classic Abbott and Costello bit, “Who’s on First?” (Full disclosure: I memorized the routine when I was a kid. My sons call me a nerd. They’re right.)

The case involves the one-minute use of “Who’s on First” in a play entitled Hand to God. The short stop version is that the Second Circuit found the playwright’s use of a full minute of the exact routine was copyright infringement.

If you recall, Bud Abbott and Lou Costello originally created and performed the routine in the 1930s, and it was featured in the film The Naughty Nineties.  It consists of the straight man and the increasingly flustered novice eager to learn the unusual names of fictional baseball players. Clever word play meets slapstick, and hilarity not only ensues, it’s enraptured audiences for some 80 years.

Hand to God takes place in a Bible Belt town in Texas, featuring a shy and reclusive lead character with an “evil” side who acts out speaking through a sock puppet. In order to impress a girl on whom he has a crush, he recites a full minute of the routine. The trial court, in the Southern District of New York, initially determined that the play’s use of the “Who’s on First” text was permissible fair use. That is, the judge held that the “transformation” from a vaudeville skit into an entirely different commentary on society as done in the play, rendered it fair use and not infringing on copyright.

On appeal, the Second Circuit disagreed, ruling that Hand to God’s use was not what transformative use is. Otherwise, anyone could simply copy whole chunks of other people’s works and claim fair use with the argument that whatever manner in which they used the routine was transformative.

The appellate court instead clarified that transformative use means the new work must alter the original work with a new expression, meaning, or message. In the case of Hand to God, there was no alteration to the verbatim quotation of “Who’s on first, What’s on second, I Don’t Know’s on third…” The play may have been using it in a different context, but copied rather than changed the work of the original authors. As such, the court found that this was not “fair use”, and the play could have infringed on the original skit’s copyright.

HOWEVER, despite this clarification, you’ll still be able to enjoy the routine if you see Hand to God because, despite the rejection of the fair use defense, the case was dismissed. Why?  (Oh, that’s the name of the left fielder).  

Seriously, I’ll tell you:  the plaintiffs could not demonstrate that they were the rightful owners of the copyright in the Abbott and Costello routine. So, the court could have decided not to address the issue of transformative work, but instead they handed down this additional commentary of which we can all take note Today (the name of the catcher) and use Tomorrow (the pitcher.).  After all, the appellate court (and really, any judge) would reason that nothing they write is “dictum” or superfluous to the decision.  

Is there a moral to this story? Even though we may have favorite movies or plays, we have to resist the temptation to use them without permission. Otherwise, a lawsuit may come in out of left field, as it were.

Did the team behind Hand to God ever try to secure rights for the Abbott and Costello bit?  I Don’t Know.  

Third Base!

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn
kaufman@kaufmankahn.com

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