Bud Abbott and Lou Costello perform “Who’s On First”

 

First the copyright infringement case over use of Abbott and Costello’s “Who’s on First” routine in a Broadway play was dismissed by a New York federal judge. Then it rounded the U.S. Court of Appeals for the Second Circuit, but was tagged out again.

Now, in its third at bat, lawyers representing the heirs of vaudeville comedy duo Bud Abbott and Lou Costello are swinging for review at the U.S. Supreme Court.

The petition for writ of certiorari filed by TCA Television Corp., Hi Neighbor and Diana Abbott Colton claims that the Second Circuit was wrong to uphold the dismissal of the case against the creators of the play “Hand to God.”“Hand to God,” authored by Robert Askins, is the story of Jason, a shy and repressed boy. Accompanied by a satanic sock puppet named Tyrone, Jason performs segments of the routine, slightly over a minute in all, to impress a girl in his very religious hometown. When Jason fibs that he made up the routine himself, the evil Tyrone calls him out on the lie.

“We felt that the Second Circuit decision was not supported by the state or the weight of the law at that time,” said Jonathan Reichman, an Andrews Kurth Kenyon partner representing the heirs.

Second Circuit Judge Reena Raggi said in the October opinion that the case failed because the plaintiffs failed to plead a valid copyright interest, despite the fact that the appearance of the routine in “Hand to God” was not fair use of the material.

Raggi rejected the defense argument that the use of the routine was for dramatic rather than comedic purposes, because it was used as a theatrical device with little significance to the story outside of setting up the scene.

The petitioners took issue with the Second Circuit’s interpretation of the Copyright Act of 1909. “The Second Circuit announced a new rule of eligibility for copyright renewal under the 1909 Act, applied retroactively to a 1940 work — i.e., that the previously unpublished material did not become part of the movie’s unitary copyright for renewal purposes unless it was created solely for the movie. Nothing in the 1909 Act supports such a judge-made rule,” the certiorari petition said.

Mark J. Lawless, who represents the defendants, declined to comment.