UPDATE Friday morning, adding comments from Chris Costello, daughter of Lou Costello; and Abbott & Costello’s attorney Marc Rachman:
“The legacy of my father is important to me and my family and we felt that this lawsuit was necessary to protect it,” Chris Costello, daughter of Lou Costello, said in an email to Deadline.
“This case is about the infringement of one of the most iconic comedy routines of all time, created by Abbott & Costello, the legendary comedy duo,” Marc Rachman, intellectual property litigation partner at law firm Davis & Gilbert representing the heirs in this case, told Deadline. “This comedy scene is being used in Hand to God without permission from the heirs of Bud Abbott and Lou Costello. Although Hand to God is an innovative and creative new American play, there is one critical scene in the play that flies in the face of the very originality and creativity that the play hopes to embody. That is the scene that uses Abbott & Costello’s “Who’s On First” without permission. And that is what this lawsuit is about.”
Rachman insisted that the suit was filed only after attempts were made to settle in the wake of the show’s Broadway opening in April. “The heirs of Abbott & Costello notified the producers and the playwright nearly two months ago and simply were stonewalled, never receiving a meaningful response,” he said. “My firm was hired recently when the prior efforts to compensate the heirs of Abbott & Costello for their original work had not succeeded. We then contacted the producers and playwright prior to commencing litigation, but the producers left us no alternative but to file the lawsuit.”
Further response from producer Kevin McCollum is expected Friday afternoon.
EARLIER: Sex between consenting puppets may be fine on a Broadway stage, but lifting one of comedy’s most famous routines may be going too far. A lawsuit filed this week in the Southern District of New York claims copyright infringement against playwright Robert Askins, along with the producers and promoters of Hand To God, a nominee for Best Play and several other Tony Awards on Sunday.
The suit, brought by the heirs of Bud Abbott and Lou Costello, asserts that the play incorporates Abbott and Costello’s famed “Who’s On First” baseball eoutine without permission and for commercial purposes, and is seeking damages and lawyers’ fees, according to a late report in the New York Times. The duo developed the bit in the late 1930s, based on standard burlesque routines that were similar in construction and theme. They took out a copyright on the routine in 1944.
According to the suit, the estate said cease-and-desist requests were sent after the play opened on Broadway in April. Hand To God play is a transfer following two previous productions off-off- and off-Broadway, the latter, by the influential MCC Theatre, a prestigious company, where the play was widely reviewed. The prior use raised suspicions on Broadway about the timing of the suit, just days before the Tony Awards, which are to take place on June 7.
“Filing a lawsuit on the eve of the Tony awards is obviously nothing more than a stunt,” producer Kevin McCollum wrote in an email to the Times. “Frankly, we welcome the attention.”
“Hand to God is using ‘Who’s on First’ not just to get laughs from the audience but also to get people to buy tickets,” a lawyer for Abbott and Costello’s heirs, Marc Rachman, said in a statement.
None of the principal players in the dispute was available immediately for comment.
The play stars Steven Boyer, also a Tony nominee, as a teenage puppeteer who tries to impress a girl by performing “Who’s On First” with his sock puppet.