Who Owns First?

Not even warming the bench

There is no end to the number of jokes one might make in a post about a decision concerning the classic Abbott & Costello comedy routine “Who’s on First”—and indeed I’m champing at the bit to make ’em—but the import of the ruling is just too great to be flip about, in this copyright comic’s opinion. Because if I’m reading the Second Circuit correctly, and I think I am, then the court thinks that the beloved shtick is no longer protected by copyright. In other words—although the court did not say so explicitly in 62 pages—the routine is in the public domain.

In TCA Television Corp. v. McCollum, decided October 11, 2016, the United States Court of Appeals for the Second Circuit found that the trial court—the U.S. District Court for the Southern District of New York—had gotten the right answer, but for exactly the wrong reason. The trial court had rejected the argument that “Who’s on First” isn’t protected by copyright (or, more accurately, that the plaintiffs had failed to plead a valid copyright interest) but was persuaded by the argument that the defendants’ use of a portion of the routine verbatim is fair use. It’s exactly the opposite, wrote the Second Circuit. (Indeed, the Second Circuit showed admirable restraint itself under the circumstances. This is perhaps the principal reason why your humble commentator is not a federal appellate judge.)

So let’s meet the players, some of whose numbers have been “retired”: Non-parties William “Bud” Abbott (1897- 1974) and Lou Costello (1906-1959) were “a popular mid-Twentieth Century comedy duo.” Non-party partnership Abbott & Costello Enterprises was established by the heirs of Abbott and those of Costello; the partnership dissolved in 1992, its assets and interests eventually transferring to two entities and a real person—TCA Television Corporation; Hi Neighbor; and Diana Abbott Colton, the three plaintiffs in this matter. The defendants are some twenty entities (plus Does and ABC Companies), all of whom/which are or were in some way or another involved in the production of a play called “Hand to God,” which was written by defendant Robert Askins.

About the play, for purposes of this discussion, one needs to know only the following two facts: (1) It’s about a troubled young man and a possessed hand puppet; (2) the young man and his puppet perform a minute’s worth of “Who’s on First,” word for word, without any modification.

The plaintiffs sued, claiming that the use of a portion of the routine infringed upon their exclusive rights in and to the material. The defendants responded, essentially, that the use is a “fair use” and therefore legally permissible notwithstanding that the defendants do not have permission… and, in the alternative, that there is no valid copyright to infringe upon, at least none belonging to the plaintiffs. The trial court found the use to be a fair use and dismissed the plaintiff’s complaint.

The Second Circuit’s analysis of the fair use argument suggests that the trial court doesn’t know the first base— er, thing about fair use, albeit politely. The use of the routine by the defendants that the trial court deemed “highly transformative” the appellate court found to be “not transformative.” Every other component of the fair use analysis likewise weighed against a finding for the defendants, and in the end the Second Circuit concluded that “the dismissal of [the] plaintiff’s amended complaint on the ground of fair use was error.”

“Nevertheless,” the decision continues, “…we conclude that dismissal was warranted because [the] plaintiffs did not plausibly allege a valid copyright interest in the Routine.”

Wait, what? Who doesn’t own the routine? Well, if the Second Circuit is correct, then the plaintiffs—the heirs of Abbott and Costello themselves—don’t own the routine. And why? Because. That is, because, in brief, the copyright registration for the routine was not renewed. Not properly, anyway. The circumstances of the non-renewal of the copyright registration for the routine are convoluted—there were almost as many versions of the routine considered as there are, say, players on a baseball team… but in the final analysis, no version of the routine is still protected by copyright.

The theories proffered by the plaintiffs are creative (copyright was assigned to a movie studio; the routine “merged” into a motion picture in which Abbot and Costello performed it; the routine was a work made for hire), if unavailing, and the reader would be well served to read the original decision. Alas, “We identify no merit in any of the theories relied upon by plaintiffs to support their copyright claim,” wrote the Second circuit, “and, accordingly, we affirm dismissal of the amended complaint for failure to plead a valid copyright.”

So… is the routine in the public domain, then?

Say it with me:

“I don’t know.”

“Third base.”