Tampa, FL asked in Copyright for Florida

Q: Does anyone know if the skit "Who on First" by Abbott & Costello is public domain or owned by their relatives.

A buddy & mine want to perform this skit on stage; but want to make sure we won't be violating the copyright law. Any help would be greatly appreciated. Thanks!

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1 Lawyer Answer

Mark A. Baker

Answered
  • Intellectual Property Lawyer
  • Tallahassee, FL

A: The copyright has PROBABLY fallen into the public domain, based upon case law. In a recent lawsuit decided by the Second Circuit Court of Appeals, a playwright had used about 30 seconds of the "Who's On First?" skit in a Broadway show, "Hand of God." The heirs of Bud Abbott and Lou Costello, together with the movie studio, TCA, which claimed copyright to the film, filed suit claiming copyright infringement.

The Second Circuit found that the usage was a not "fair use," but that the plaintiffs/heirs had failed to established that they held a valid copyright interest, and the case was dismissed. The TCA plaintiffs said that Abbott and Costello’s heirs received rights in the skit from Universal Pictures Corp. (UPC) in 1984. It appeared that the routine had been separately registered for Abbott and Costello in the U.S. Copyright Office in 1944, though not renewed in 1972, as required at that time for continued copyright protection.

The appeals court held: “In sum, because plaintiffs fail plausibly to allege that (1) Abbott and Costello assigned their common law copyright [as an unpublished work] in Who’s on First? to UPC; (2) the Routine, as appropriated by defendants in Hand to God, was first created for UPC as a work-for-hire; or (3) the Routine so merged with the UPC movies in which it was performed as to become a unitary whole, we conclude that plaintiffs did not plead their possession of a valid copyright in the Routine, as required to pursue their infringement claim.” TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016).

The heirs then appealed to the U.S. Supreme Court and the defendants argued in their certiorari brief that “the Second Circuit had announced a new rule of eligibility for copyright renewal under the 1909 [Copyright] Act, applied retroactively to a 1940 work — i.e., that the previously unpublished material did not become part of the movie’s unitary copyright for renewal purposes unless it was created solely for the movie. Nothing in the 1909 Act supports such a judge-made rule.” In other words, to be covered under the movie's copyright ("One Night In the Tropics," made in 1940), the material must have been created for the movie; but the "Who's On First?" skit was created prior to the movie, had been performed on the Kate Smith Radio Hour in 1938, and was separately registered for copyright by Abbott and Costello (but the copyright was not renewed).

The Supreme Court declined to hear the case, thus leaving the Second Circuit decision standing. Thus, it seems settled that the "Who's On First?" skit has fallen into public domain.

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