Strikeout in ‘Who’s on First?’ Court Battle

MANHATTAN (CN) - The Broadway hit "Hand to God" does not infringe Abbott and Costello's rights by having a salty sock puppet perform some "Who's on First," a federal judge ruled.

TCA Television Corp., Hi Neighbor and Diana Abbott Colton sued the producers of the show in June for performing a minute-long bit through a sock puppet named Tyrone.

But U.S. District Judge George Daniels tossed their suit on Thursday, finding that producers Kevin McCollum, Manhattan Class Co., the Ensemble Studio Theatre and the show's playwright, Robert Askins, tweaked the routine enough to qualify as fair use.

"Because plaintiffs have insufficiently alleged a copyright infringement by defendants of the Abbott and Costello routine, the complaint doesn't get past first base," Daniels wrote, with a wink to baseball humor.

Bud Abbott and Lou Costello first performed the "Who's on First?" routine in March 1938.

In the bit, the two men argue over semantics about baseball and who's on what base. The joke is: Who is the name of the person on first base, so round-and-round they go, trying to figure out who's on first. Who is the name of the guy on first, and that's who's on first.

Bob Saget last month joined the cast of "Hand to God," which opened in April. The play is set in a religious, small town where the shy main character Jason explores some light Satanism through a foul-mouthed sock puppet named Tyrone.

Abbott and Costelo's heirs had claimed that the play's "Who's on First?" scene is performed for the exact purpose as the original performances, namely "audience laughs."

Judge Daniels scoffed that this logic "cannot defeat the transformative use argument."

"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," the judge wrote. "Thus, defendants' use of the part of the routine is not an attempt to usurp plaintiff's material in order to 'avoid the drudgery in working up something fresh.'"

The play's use of "Who's on First" may result in comic relief for the audience, but "it does so for reasons different from why audiences found the original sketch humorous," the 24-page decision states.

Daniels said Tyrone "breaks the 'fourth wall' with the audience when he says to Jessica, 'You'd know [Jason didn't make the routine up] if you weren't so stupid,' sharing with them an inside joke."

"The audience laughs at Jason's lie, not, as plaintiff's claim, simply the words of the routine itself," Davis said.

"It is unlikely that a reasonable observer of the new work would find that Jason and his puppet's reenactment of the routine would usurp the market for the original Abbott and Costello performance of the routine," the judge wrote.

In any case, publicity from the play may do the heirs good, the judge noted.

"Defendant's transformative use of the routine could arguably broaden the market from the original work, as it exposes a new audience of viewers to the work of the classic American comedy duo," Daniels wrote.

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