EXCLUSIVE: Hand To God producer Kevin McCollum says there’s something rotten about a lawsuit filed this week against his show on behalf of the heirs to Bud Abbott and Lou Costello. The suit, which Deadline covered earlier, was filed this week in the Southern District Of New York and claims that the use of “Who’s On First,” an iconic Abbott & Costello comedy routine, violates copyright protection and seeks damages including lawyers fees. On Friday, both teams cleared the benches in what’s shaping up to be a brawl. Tensions have been heightened by the timing of the lawsuit, filed just days before Sunday’s Tony Awards, where the sharp-edged comedy is in a heated battle for the top prize of Best Play, among other awards.
“We did our due diligence,” said McCollum, the rare producer who stakes only risky new work in the Broadway bazaar. “That’s the first thing you do as a producer.” During a conference call with Deadline, McCollum, attorney Loren Plotkin and copyright litigator Mark Lawless (yes Lawless), asserted that the heirs’ claim of copyright protection had “no pedigree” and that even if it did, partial use of the classic comic bit falls under the protection of “fair use” doctrine.
“We said to them, ‘Show us proof that this is not in the public domain,” Plotkin said, asserting that while Abbott and Costello were diligent about protecting other copyrighted material, they failed or neglected to renew the copyright for “Who’s On First” at two critical junctures, in 1968 and in 1973. “The failure is fatal to their case,” said Lawless. He added that even if the routine had copyright protection, the partial use in Hand To God constitutes fair use because it is used differently, and to different effect, than the original material — a process called transformative use. Rather than just repeat the sketch to draw laughs, he said, it’s used in the play to reveal the main character’s “darker side and deep insecurity.”
McCollum added that the scene in which the bit appears is not part of the show’s advertising campaign and that “people are not coming to Hand To God to see [the show’s star] Stephen Boyer do ‘Who’s On First.’ “
Balls, suggested Marc Rachman, the litigating attorney who represents the Abbott and Costello estates. ” ‘Who’s On First’ is not in the public domain. The heirs have a long history of licensing ‘Who’s On First’ and protecting its copyright.” As an example, he cited the routine’s use in the 1988 Dustin Hoffman/Tom Cruise film Rain Man. “That was licensed,” Rachman said.
As to the argument that the use of “Who’s On First” is transformative, Rachman was equally unmoved. “We believe that claim is baseless and that its appearance is being used for the same purpose as Abbott and Costello, which is for comic effect.” He pointed to a video on YouTube posted by Broadway.com featuring the scene along with a pitch to buy tickets to the show. “The success of Hand To God doesn’t give it the right to use someone else’s work without permission,” he said.
In a brief, Lawless addressed to Rachman in response to the issues raised, he held fast to his insistence that the heirs had not shown definitively that “Who’s On First” has copyright protection. Moreover, he argued, “The issue of fair use looms large. Under applicable precedent, the non-displacing use of a snippet of the skit to evoke the inner feelings and attitudes of the protagonist of Hand To God is transformative. Far more so, for example, than the recent Jimmy Fallon use [which] was gratis, or the Baseball Almanac presentation as history at http://www.baseball-almanac.com/humor4.shtml, or the use by courts, all available for free.”
Looks like that will be for a judge and jury to decide.