Broadway play wins lawsuit over heirs to 'Who's on First'

AP News
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Posted: Dec 17, 2015 6:19 PM

NEW YORK (AP) — Abbott and Costello's heirs struck out Thursday in their efforts to prove copyright claims against the producers of a Broadway play in which a character uses a sock puppet to perform part of the comedians' famous "Who's on First" routine.

"The complaint doesn't get past first base," U.S. District Judge George B. Daniels wrote as he dismissed the lawsuit filed in Manhattan in June.

The copyright holders had accused "Hand to God" producers, promoters and playwright Robert Askins of copyright infringement.

The lawsuit 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.

The judge said the one-hour, 55-minute play made use of the famous routine in a way that was transformative and assumed the audience recognizes the original source of the satanic sock puppet's performance.

Daniels said the famous rendition of "Who's on First" involved two actors performing in the vaudeville genre while the play relies on a single actor performing the routine as the play's shy and repressed main character "Jason" so he can illustrate a larger point with help from his puppet "Tyrone." He noted that Jason finds a creative escape from his religious small-town life through Tyrone.

"While the routine, as performed in the play, also results in comic relief for the audience, it does so for reasons different from why audiences found the original sketch humorous," Daniels said.

Abbott and Costello first performed "Who's on First?" in March 1938 with Lou Costello trying to learn the names of players on a baseball team from William "Bud" Abbott. Laughs ensue when Costello was left perplexed as he grappled with the reality that the first baseman was named "Who," the second baseman, "What," and the third baseman, "I Don't Know."

"Hand to God" lead producer Kevin McCollum had called the lawsuit "a stunt" and said producers welcomed the attention.

Rick Miramontez, a play spokesman, said in an email Thursday that McCollum and the show's producers "are pleased by this victory, especially for the American playwright."

Lawyers for the heirs did not immediately return messages seeking comment.

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

He added that the play's "transformative use of the routine could arguably broaden the market for the original work, as it exposes a new audience of viewers to the work of the classic American comedy duo."