Texas residents may be familiar with the classic comedy sketch ‘Who’s On First?” that was famously performed by comedy duo Abbott and Costello. Decades after the sketch was performed in vaudeville theaters and featured in two Hollywood movies, the heirs of Abbott and Costello filed a copyright infringement lawsuit. According to the heirs, a Broadway play called ‘Hand of God” used pieces of the sketch without permission.
The Abbott and Costello case has brought up many questions about whether or not the heirs have a valid copyright. Although Universal Pictures transferred the copyright for the ‘Who’s on First?” video clips to the heirs of Abbott and Costello in 1984, the sketch was used many times before it was recorded in the 1940’s films ‘One Night in the Tropics” and ‘The Naughty Nineties.” Because the sketch was used by several different vaudeville performers including Abbott and Costello, it is not clear who the original authors were.
Even if the heirs own a valid copyright for ‘Who’s On First?,” the author of the Broadway play may have used pieces of the sketch legally. Under fair use laws, copyrighted material can be used by another person if the use is transformative and does not seek to replace the original copyrighted material. The Broadway play is not a comedy and does not usurp the market for the Abbott and Costello films.
The application of intellectual property laws can be complex when lawsuits involve old pieces of art. Some works are considered part of the public domain while others may be copyrighted material. A lawyer may be able to help a copyright owner to determine if there is a basis for filing a copyright infringement claim against another party who has used works that they own.