Copyright, Fair Use, and Who’s On First – Part II

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 15, 2021

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“Fair Use” is one of the most challenging concepts in copyright law.

Normally, under copyright law you can’t copy a “work of authorship” that someone else owns. But the “fair use” doctrine says that you CAN copy when the copying qualifies as “fair use.”

As attorney Rich Stim writes on the Stanford University Library web page,

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.

For example, commenting on and criticizing a work can involve quoting some part of a book in a book review, using a clip from a movie in a film class, etc.

Scary Movies and Pretty Women

Parody can involve movies that play with (and comment upon) elements and tropes in other movies — such as the Scary Movie franchise.

2 Live Crew’s song “Pretty Woman” was based on Roy Orbison’s “Oh, Pretty Woman,” and that parody case went all the way to the US Supreme Court.

But courts can’t always agree on what exactly it means to call a use “transformative.”

Who’s on First?

Earlier this year, I wrote a blog about a lawsuit that the heirs of comedians Lou Abbot and Bud Costello brought against the producers of a Tony-nominated Broadway show called Hand to God.

The show portrayed one of the characters, a disturbed teenage boy, trying to impress a girl by performing the Abbot and Costello routine  “Who’s on First?” using a sock puppet.

The producers filed a motion to dismiss, claiming that they were protected by the “fair use” doctrine in that their use was transformative.

The district court judge agreed and dismissed the case.

On Appeal

But the estate appealed, and the US Court of Appeals for the Second Circuit found that the use was NOT transformative and thus NOT fair use.

As the Court of Appeals noted,

the focus of inquiry is not simply on the new work, i.e., on whether that work serves a purpose or conveys an overall expression, meaning, or message different from the copyrighted material it appropriates. Rather, the critical inquiry is whether the new work uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created. … Otherwise, any play that needed a character to sing a song, tell a joke, or recite a poem could use unaltered copyrighted material with impunity, so long as the purpose or message of the play was different from that of the appropriated material.

Even if, as the district court had concluded, the play was a “darkly comedic critique of the social norms governing a small town in the Bible Belt” and the play’s purpose and character were “completely different from the vaudevillian humor originally animating Who’s on First?,” that wouldn’t make the play’s use of the routine “transformative.”

The play wasn’t “commenting” on the comedy routine — it was merely using it in a different context and for a different purpose.

Said the Court,

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.

However, the Court affirmed the dismissal on the separate ground that the plaintiffs hadn’t plausibly alleged a valid ownership of the copyright in the original routine.


Anyone planning to copy, adapt, or otherwise use a copyrighted work without obtaining a proper license needs to be aware of the risks of doing so — since even courts can’t agree on what “fair use” means.

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