NEW YORK (AP) – Producers of a now-closed Broadway play can use Abbott and Costello’s famous “Who’s on First” routine over objections by the comedy duo’s heirs, an appeals court ruled Tuesday.
The 2nd U.S. Circuit Court of Appeals in Manhattan upheld a lower-court judge’s decision last December against heirs who had sued “Hand to God” producers.
That judge had ruled that the play’s use of the routine was so transformative that it constituted fair use of a copyrighted work. The 2nd Circuit disagreed, saying that the play appeared not to have altered the routine at all. But it said the heirs could not win their claim because they could not prove they owned a valid copyright.
The lawsuit, filed in Manhattan federal court last year, claimed the play “copied the very heart” of “Who’s on First?” with a one-minute, seven-second portion that was used so the play could more easily be promoted as a comedy as it confronts dark sides of human behavior.
In the play, an actor uses a sock puppet to perform part of the famous routine almost verbatim.