This week lawyers for heirs to the estates of Bud Abbott and Lou Costello filed a lawsuit in New York against the author and producers of Hand To God, claiming that the show — a Tony nominee for best play and four other awards at tomorrow night’s ceremony — violated the copyright protection of “Who’s On First?” by using the famed routine without permission. They’re suing for damages. Lead producer Kevin McCollum and his lawyers countered that the bit is in the public domain and even if it’s not, the use of several lines from the sketch falls under the doctrine of fair use.
Both sides claim the high moral ground: The heirs assert that being a brash, original work of art doesn’t give you the right to steal someone else’s original work of art. They also point out that a YouTube video of the routine from the play is being used to promote the show commercially. McCollum asserts that he’s all about original work, doesn’t steal, and the use of a fragment of “Who’s On First?” is “transformative,” the legal term for fair use of copyrighted material when it’s put to a different use than the original — for example, as in a satire or critical work.
So who’s right?
In the interest of research and fair play, I returned to Hand To God on Friday night to refresh my own memory about the use of “Who’s On First?” in the show. (I realize that having to revisit Broadway shows is dirty business, but I always knew some grueling work would come my way.) I’m a champion of the play, as my earlier review already made clear, and a second viewing didn’t change my opinion. The packed house at the Booth Theatre also seemed to be loving it, though there were a few walkouts. Frankly, I see that as a good sign: If satire doesn’t offend at least some people, it isn’t doing its job.
As to the issue at hand, I can only say that I’m no lawyer but this suit by the descendants of Abbott & Costello strikes me as, to be kind, a nuisance of the first order. And, to be less, kind, as a money grab of a lower order.
Point: The section of “Who’s On First? used in Robert Askins’ comedy amounts to about 1 minute from the much longer routine. Point: It’s used as a culture touchstone and by a sad-sack insecure teen to impress a girl, who — a key issue — doesn’t even get the reference, an admission that draws the biggest laugh from the audience, when the boy at first tries to take credit for it. Point: The use of “Who’s On First?” is of a piece with the rest of the play and it strikes me as foolish to suggest it has a dominant impact on audience response — any more than, say, a later use, also satiric, of “You’ve Lost That Lovin’ Feeling.” I’m not aware of any suits brought by the Righteous Brothers against McCollum & Co. (Not yet, anyway.)
I may be mistaken in some of my Tony predictions for tomorrow night, but I’d bet hard currency that a judge will agree there’s no case here. If I’m wrong, I’ll just say the Devil made me do it.