[Editor Charlie sez: One of the most unfair artist cases so far this decade. The process is complex, but the result is not!]
The heirs of William “Bud” Abbott and Lou Costello this week petitioned the high court to review a case concerning their world-famous comedy routine. Those heirs sued the producers of the Broadway play Hand to God in June 2015, claiming copyright infringement, and what looked to be a case about fair use took a surprising turn in October 2016 when the 2nd Circuit Court of Appeals decided that the heirs lacked standing to sue and suggested that “Who’s on first?” was in the public domain.
The case is about eight decades in the making since Abbott and Costello performed “Who’s on first?” on radio. At the time, the two didn’t secure a copyright registration or publish their material with a copyright notice. Instead, Abbott and Costello would bring “Who’s on first?” to the 1940 film One Night in the Tropics, which attained a copyright via registration by Universal Pictures. A few days before the film was released, the comedy pair entered into an agreement with Universal that reserved for them the right to use routines created by them. In 1967, Universal renewed the copyright on One Night in the Tropics. Then in the early 1980s, Universal quitclaimed rights to the comedians’ routine to the heirs’ companies. (Costello died in 1959. Abbott died in 1974).
Ever since, Abbott and Costello heirs have been operating under the assumption that they own “Who’s on first?,” suing the Hand to God producers for incorporating the bit into their play about a demonic hand puppet belonging to an introverted student. They subsequently got a huge shock when an appeals court decided that because Abbott and Costello hadn’t specifically created their routine for One Night in the Tropics, the heirs couldn’t rely on Universal’s copyright renewal to enjoy ownership. Stated another way, the appeals court suggested that Abbott and Costello needed to file their own copyright and renewal.