Understanding Copyrights: Fair Use and “Who's on First”

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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: Jul 15, 2021

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The concept of “fair use” carves out an exception to the exclusive rights of copyright owners. As described on the Stanford University Libraries web page on “What is Fair Use”.

In its most general sense, 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. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as fair use, then it would not be considered an illegal infringement.

A recent court case provides a good example.

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Hand to God is a Tony-nominated Broadway show. The New Yorker calls it “ribald and wickedly funny.”

During the course of the play the lead character tries to impress a girl by launching into a very famous Abbott and Costello routine: “Who’s on First?” If you’re not familiar with Who’s on First, and you could use a laugh in your day, watch it via the link above — it’s hilarious.

In a court case filed in the US District Court for the Southern District of New York, TCA Television Corp. et al v. McCollum et al, the heirs of Abbott and Costello, sued the producers of the play, claiming that:

despite requests to Defendants to cease and desist their unauthorized use of material from the Routine in Hand to God, Defendants continue to “willfully capitalize on Abbott & Costello’s world-famous reputation and Plaintiff’s copyrighted works.”

The defendants filed a motion to dismiss on a variety of grounds, including that their use of the routine was a protected “fair use” of the material.

In determining whether a use is fair the judge cited a four-part test:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The judge concludes that the use of the routine in the play could actually increase the value of the original copyrighted work: “it exposes a new audience of viewers to the work of the classic American comedy duo.”


The judge also ruled that the way the play uses the material is “transformative”:

The contrast between Jason’s seemingly soft-spoken personality and the actual outrageousness of his inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small town in the Bible Belt. Thus, defendants’ use of part of the routine is not an attempt to usurp plaintiffs’ material in order to “avoid the drudgery in working up something fresh.”

The judge dismissed the case with a hat tip to the routine itself:

Because Plaintiffs have insufficiently alleged a copyright infringement by Defendants of the Abbott and Costello Routine, the Complaint doesn’t get past first base.

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