Fair Use Defense Does Not Get Past First Base

In December 2015, SDNY decided the case TCA TV Corp. v. McCollum. At issue was Defendants’ use of dialogue from the iconic comedy routine “Who’s on First?” for a Broadway comedy, “Hand to God.” The Plaintiffs, heirs of Abbott and Costello, asserted copyright ownership of the “Who’s on First?” routine and alleged Defendants infringed on their copyright.

Defendants filed a motion to dismiss for failure to state a claim, arguing the Plaintiffs failed to allege a continuous chain of title in the routine, that the routine had passed into public domain, and that their use was protected under the defense- fair use.

The Defendants’ motion to dismiss was granted as SDNY found Plaintiff did not sufficiently allege a claim for copyright infringement. For the motion’s sake, the court accepted the copyright assertion as true, but dismissed the case on the grounds that the use was protected under the fair use defense.

However, the Plaintiffs appealed this decision to the Second Circuit, but on October 11, lost the appeal. Although both courts ultimately came to the same decision, siding with the Defendant, the analysis in the Second Circuit appeal is in opposition to SDNY.

The Second Circuit found that Plaintiffs did not hold valid copyright to the routine, but that if they did, fair use would not be a defense. Specifically, the court stated the four factors of fair use weighed in Plaintiffs’ favor, and thus SDNY erred in their determination that fair use would be a complete defense in the matter. Where SDNY finds the use transformative, the Second Circuit argues the Defendant did not alter the original work at all.

Who got it right? and how will this change the precedent for fair use defenses?

Tags: Copyright, copyright infringement, Litigation, SDNY, who's on first