Classic Abbott And Costello Sketch Subject Of Copyright Infringement Lawsuit
January 13, 2016
by Jerry Glover
[NOTE: The court opinion summarized below does not include the court’s discussion of copyright ownership in a work created before the effective date of the current U.S. Copyright Act. This summary focuses solely on the copyright fair use defense].
“Who’s on First” is one of the greatest comedy sketches of all time. And the playwright behind the Broadway hit, “Hand to God,” thought it would be great to incorporate a portion of that sketch into his script. The actors’ rendition of that portion of the sketch was also included in a promotional video for the play. The result: the owner of the rights in the sketch filed suit alleging copyright infringement. TCA Television Corp. v. McCollum, 2015 WL 9255341 (S.D.N.Y. December 17, 2015). If you’ve never seen “Who’s on First?”, go here: https://www.youtube.com/watch?v=kTcRRaXV-fg
The play’s main character is Jason, a repressed figure who finds escape from his small-town, religious life through a hand puppet, Tyrone. Gradually, the puppet develops a life of its own. In one scene, Jason attempts to impress the female lead, Jessica, by performing one minute and seven seconds of “Who’s On First” with Tyrone the puppet. Jessica asks Jason if he made up the routine and he says “yes.” Tyrone calls Jason a liar and tells Jessica that the sketch is a famous routing from the Fifties adding “You’d know that if you weren’t so stupid.” This behavior is the start of Tyrone revealing his dark side.
In order to prove infringement, a plaintiff must show that his/her copyrighted material was copied by the defendant and that the defendant’s resulting work is substantially similar to the plaintiff’s work. In this case, the playwright conceded that he had copied a portion of “Who’s on First.” But the defendant argued that his use of a portion of the skit was a fair use.
Those of you who follow this column know that the fair use provision of the U.S. Copyright Act is an attempt by Congress to expand public knowledge by allowing, under certain circumstances, the use of copyrighted material without the owner’s permission. To determine whether a use is fair, the Copyright Act sets out several non-exclusive factors:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Creative materials have stronger copyright protection than factual materials. The skit falls into the creative category so, in the court’s view, this factor weighed in plaintiff’s favor.
The amount and substantiality of the portion used in relation to the copyrighted work
This factor requires a court to consider how much of the original work was used and not how much of the defendant’s work comprised the original. Generally, the larger the taking the less likely fair use will be found.
Here, the skit excerpt in the play totaling one minute seven seconds. The entire skit, depending on the version reviewed, ran from three minutes to nine minutes. But there’s more to this fair use factor that number of minutes. You must also look at whether the defendant’s work took the “heart” of the plaintiff’s work. Although the court found that this factor tipped slightly in plaintiff’s favor, it also noted that defendant’s use of the “Who’s on First” material was highly transformative which outweighed the importance of this factor.
The effect of the use upon the potential market for or value of the copyrighted work
Copyright law attempts to allow the copyright owner to exploit his/her work and to profit from that exploitation. Did defendant’s use of a portion of the skit destroy the market for plaintiff to license or otherwise exploit the skit? The court said no—how can a puppet and his “master” take the place of the original skit. As a matter of fact, the court noted that the use of a portion of the skit in this play could broaden the audience for the original skit.
The purpose and character of the allegedly infringing use
Some courts call this factor the heart of the fair use inquiry. The play in which portions of the skit were used was a commercial project. The plaintiff argued that using the skit in video promotions for the play emphasized the commercial nature of the project. But the degree of commerciality has never been an important factor in fair use analysis since “no man but a blockhead ever wrote, except for money.” But does the portion of the skit used supersede the original or does it add something new with a different character/purpose thereby altering the message of the original? If so, it is considered to be a “transformative use.” A transformative use employs the plaintiff’s material in a different and original manner. This court rejected the idea (relying on precedent of the U.S. Court of Appeals for the Second Circuit) that the defendant’s use of plaintiff’s material somehow comment on the original work. Defendant argued that the use of a portion of the skit in this play created a new understanding about the relationship between horror and comedy which, obviously, the original skit lacked.
Overall, the court found a clear fair use of the skit in the play.
NOTE: Most studios/networks/insurance companies will not allow a producer to rely on a fair use defense when third party material is inserted into a non-documentary piece. They require written permission from the copyright owner.