Friday, September 29, 2023
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No Extra Innings in ‘Who’s on First’ Battle

MANHATTAN (CN) — The heirs of iconic comedy duo Abbott and Costello failed Tuesday to get extra innings in their copyright challenge over a Broadway play's use of the famous bit "Who's on First."

Nearly 80 years after the routine first aired on a live radio broadcast, the heirs of Bud Abbott and Lou Costello learned that a foul-mouthed sock puppet named Tyrone was delivering the bit in the first 15 minutes of the new-to-Broadway dark comedy "Hand to God."

Though the heirs claimed federal copyright infringement, their New York lawsuit struck out last year.

A three-judge panel of the Second Circuit affirmed Tuesday

The original dismissal order by U.S. District Judge George Daniels was laden in baseball puns, but none of that humor makes it into Tuesday's doorstopper from the Second Circuit.

Over 62 legalese-heavy pages, the court says the play neither transforms Abbot and Costello's joke nor qualifies as fair use, but that the heirs simply failed to plead valid copyright.

The heirs who brought the suit filed as two companies, TCA Television and Hi Neighbor, and one individual, Diana Abbott Colton.

They claimed the rights to the routine flow from Abbott and Costello's first motion picture, the 1940 film "One Night in the Tropics," as part of contract with Universal Pictures Company.

"The argument is defeated by plaintiffs' own allegation — which we must accept as true — that the routine was first performed in March 1938, more than two years before Abbott and Costello entered into the July and November Agreements with UPC," U.S. Circuit Judge Reena Raggi wrote for a three-person panel.

U.S. Circuit Judges Dennis Jacobs and Guido Calabresi concurred.

Jonathan Reichman, an attorney for the heirs with the firm Andrews Kurth Kenyon, said that he was gratified with the court's decision regarding fair use, but disappointed with the copyright decision, which he claimed "barely came up in oral arguments."

The heirs will seek a rehearing before the federal appeals court, the attorney added.

Manhattan attorney Mark Lawless represents the "Hand to God" defendants, including producer Kevin McCollum, playwright Robert Askins, and the Ensemble Studio Theatre.

Representatives for the defendants did not immediately return requests for comment.

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