“Who’s On First?” in the public domain, says Appeals Court

We don’t get a lot of recent cases where copryight renewal turns out to be the key element.  But this case is amazing.  It’s a case where Abbot and Costello’s heirs tried to prevent a broadway production, Hand to God, from using about 30 seconds of “Who’s on First?”  The district court found transformative use.  The Appeals court, said, “no.”  Nothing transformative about using the comedy routine in the manner used in the show.  But here’s where it gets interesting:  the court found that (in a complicated manner), “Who’s on First?” is likely in the public domain — no renewal record.  

  1.  “Who’s on First?” was first performed on the radio.
  2. Then, it was incorporated into a couple of films, but because it had already been created before the film, the comedy bit was considered separately protected, and not created at the “instance and expense” of the films.  The registration and renewal records for those films do not apply.
  3. Then, we turn to the registration/renewal records.  The comedy routine is finally registered in 1944, but not renewed.   

The court notes that the part used in the play (the beginning of the routine) was covered by this first registration.  

Here is the opinion.  So, not transformative (fair use), but in the public domain.  Maybe the estate should have let the 30 seconds be used without fuss…  

Elizabeth Townsend Gard

Dr. Elizabeth Townsend Gard loves all things copyright, especially duration. She worked professionally as an actor, has a Ph.D. in Euorpean history (with a focus on 20th century and biographies), is an avid quilter and a beginning crochet-er. She has also expanded her interest due to her teen to art, fan fiction, and K-12 education of copyright. Most of her time over the last decade has been devoted to the Durationator, which is a software tool that determines the copyright status of any work anywhere in the world. She grew up in California, and has spent time in Tuscon, London, Seattle, and now New Orleans.

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