Pike on the Abbott and Costello Routine: "Who's On First" and Copyright Law @NorthwesternLaw

George M. Pike, Northwestern University School of Law, has published Legal Issues: Abbott and Costello Explain Copyright Law. Here is the abstract.

But history and modern pop culture know Abbott and Costello for one thing: “Who’s on First”, the “patter” routine involving the nicknames of the members of a baseball team, The routine’s fame has caused it to be, “reprised, updated, alluded to and parodied innumerable times over the years.” Through 2015 and 2016 the routine was at the center of a copyright dispute over its use in the Broadway play, Hand to God. The dark comedy/drama involves a fundamentalist church’s “puppet club”, where young people use sock puppets to act out Biblical and religious stories. The playwright and producer used an abbreviated but recognizable version of the routine and did not obtain a license or permission to use it. The heirs and successors of Abbott and Costello sued for copyright infringement. In 2015, a trial court found the use of the routine to be a “Fair Use” under Title 17, Section 107 of the Copyright Act. In October, 2016, a Federal appeals court reversed the decision, determining that the use had not been a fair use. The Court’s opinion in the case of TCA Television Corp v. McCollum is being seen by some commentators as clarifying one copyright law’s more complicated issues, the Fair Use Doctrine’s concept of “transformative use”.

Download the article from SSRN at the link.