Fair Use Doctrine: Comedy routine fails to get laughs from plaintiff – or court

April 10, 2017
Patterson Thuente IP

Imitation is the sincerest form of flattery — or so the saying goes. However, when it comes to copyrighted material, imitation can also be unlawful infringement if use of the work isn’t deemed a “fair use.” What constitutes fair use was central to a recent Second Circuit Court of Appeals case involving the incorporation of an iconic comedy routine into a Broadway play.

Comedians’ heirs call foul

TCA Television Corp. v. McCollum originated when the heirs of comedy legends Abbott and Costello sued the producers of a critically acclaimed play. The producers had used one minute and seven seconds of dialogue from Abbott and Costello’s routine about a baseball team’s oddly named roster, known as “Who’s On First?” The play, a dark comedy, used the bit in a scene where the main character tries to impress a woman by performing the routine with his sock puppet and claiming that he wrote it. The sock puppet then calls him a liar.

The trial court dismissed the plaintiffs’ copyright infringement claim. The plaintiffs appealed, challenging the court’s finding that the defendants’ use of the routine was a transformative fair use. A transformative use adds something new, with a further purpose or different character, to the original work. Transformative uses are more likely, but not guaranteed, to be considered fair.

Court flips the script

The appeals court agreed with the plaintiffs that the defendants’ “verbatim use” of the routine wasn’t a fair use under the federal Copyright Act. In fact, it found that all four of the nonexclusive factors considered when determining whether the use of a copyrighted work qualifies as fair use weighed against the defendants.

Considering the first factor, the purpose and character of the use, the critical inquiry is whether the new work uses the copyrighted material for a purpose or imbues it with a character different from that for which it was created. The court determined that the defendants’ commercial exploitation of the routine couldn’t be deemed transformative. “There is nothing transformative about using an original work in the manner it was made to be used” — in this case, to get a laugh. The use of the routine in the play didn’t convey a different message, meaning or expression. The court also noted that even a finding of transformative use isn’t necessarily determinative of the first factor, let alone of fair use.

The second factor, the nature of the work, also weighed strongly in the plaintiffs’ favor. That’s because the creative nature of the routine “lies at the heart of copyright’s intended protection.”

The third factor, the amount and substantiality of work used, further weighed in favor of the plaintiffs. Although the defendants engaged in copying only approximately one minute of the routine, it copied the “qualitative value” by revealing the underlying joke that “words understood by one person as a question can be understood by another as an answer.”

Finally, the appeals court determined that the fourth factor — the effect of use on the potential market for the work — favored the plaintiffs. The plaintiffs alleged that there’s demand for the licensing of the routine and that the defendants’ use of it adversely affected its future licensing market.

Curtain call

As counterintuitive as it may sound, the plaintiffs didn’t get the happy ending they’d hoped for. It turns out that “Who’s on First?” is in the public domain because its copyright wasn’t renewed in 1968. Thus, the court decided that the defendants didn’t meet the first element of copyright infringement. It affirmed the trial court’s dismissal of the complaint for lack of a valid copyright.

TCA Television Corp v. McCollum, No. 16-134, Oct. 11, 2016 (2d Cir.)