EXCLUSIVE: Here’s a Christmas present for Tyrone the puppet and the rest of the Hand To God gang: U.S. District Court Judge George B. Daniels today ruled that the use of a section from the Abbott & Costello routine “Who’s On First?” in the Tony-nominated play does not infringe on copyright and falls with the frame of “fair use.” The suit had been brought by the heirs of the comic duo after the play moved to Broadway following two off-Broadway runs.
The plaintiffs were TCA Television Corp., Hi Neighbor and Diana Abbott Colton. The defendants were Broadway producer Kevin McCollum, The Ensemble Studio Theatre, Manhattan Class Company, playwright Robert Askins, Hand To God LLC and its investors.
Daniels found not only that the use of lines from “Who’s On First?” is fair use, but also that their application in Hand To God is “transformative,” a word and concept Tyrone himself might have some fun with:
“It is the performance through the anti-hero puppet, Tyrone, that, according to Defendants, creates new aesthetics and understandings about the relationship between horror and comedy that
￼are absent from Abbott and Costello’s performances of the Routine in One Night and The Naughty Nineties. Whereas the original Routine involved two actors whose performance falls in the vaudeville genre, Hand to God has only one actor performing the Routine in order to illustrate a larger point. The contrast between Jason’s seemingly soft-spoken personality and the actual outrageousness ofhis inner nature, which he expresses through the sock puppet, is, among other things, a darkly comedic critique of the social norms governing a small town in the Bible Belt. Thus, Defendants’ use of part ofthe Routine is not an attempt to usurp plaintiffs material in order to ‘avoid the drudgery in working up something fresh.’ Nor is the original performance ofthe Routine ‘merely repackaged or republished.’ “
Essentially throwing out all the plaintiffs arguments, Daniels dismissed the entire suit with his own comic dig:
Plaintiffs’ federal and New York common law copyright claims are DISMISSED. Because Plaintiffs have insufficiently alleged a copyright infringement by Defendants of the Abbott and Costello Routine, the Complaint doesn’t get past first base.
Hand To God now features Bob Saget in its final weeks before shuffling off to London.