The heirs of famous comedy team Abbott and Costello are entering their second year of being embroiled in a lawsuit that claims a playwright stole copyrighted material for his work. The so-called copyrighted material is from the comedy team's famous "Who's on First?" skit, and it was used in the play "Hand to God," which has garnered Tony Award nominations during its successful run.
During the play, an evil hand puppet recites up to a minute of the routine, at first claiming the material as his own before admitting it comes from a comedy skit from the fifties. In reality, Abbott and Costello first performed the skit on the radio in the 30s and later performed it twice in movies during the 40s. Records indicate the pair registered a copyright on the skit in 1944.
The heirs of Abbott and Costello's estate have filed a lawsuit against the producers of the play, citing the use of copyrighted material without permission. The original lawsuit was dismissed by a judge who said that the play made fair use of the material because its use was transformative. An appeals judge disagreed that the use was transformative, but still dismissed the case, ruling that the heirs failed to demonstrate a valid ownership of the copyright.
The decision actually raises the question whether "Who's on First?" is still under copyright or whether it has passed into public domain. The comedic team never renewed their copyright after the 1944 filing, and there's some question about whether Universal Pictures licenses to the movies the skit appeared in count.
This case is a great example of how creative assets can be complex to administrate and how heirs can often find legal battles in the future. Working with an estate planning lawyer now can help you prepare for protection of your assets in the future.