Supreme Court Asked to Save Abbott and Costello "Who's on Fi

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Supreme Court Asked to Save Abbott and Costello "Who's on Fi

PostFri Apr 21, 2017 6:42 am

http://www.hollywoodreporter.com/thr-esq/supreme-court-asked-save-abbott-costello-whos-first-copyright-995770

April 20, 2017 9:24am PT by Eriq Gardner
Supreme Court Asked to Save Abbott and Costello "Who's on First?" Copyright

After being sworn in, Neil Gorsuch is now the ninth justice on the U.S. Supreme Court, but at an upcoming conference to decide which cases should be heard, a question will undoubtedly be raised: "Who's on first?"

That's because the heirs of William "Bud" Abbott and Lou Costello this week petitioned the high court to review a case concerning their world-famous comedy routine. Those heirs sued the producers of the Broadway play Hand to God in June 2015, claiming copyright infringement, and what looked to be a case about fair use took a surprising turn in October 2016 when the 2nd Circuit Court of Appeals decided that the heirs lacked standing to sue and suggested that "Who's on first?" was in the public domain.

The case is about eight decades in the making since Abbott and Costello performed "Who's on first?" on radio. At the time, the two didn't secure a copyright registration or publish their material with a copyright notice. Instead, Abbott and Costello would bring "Who's on first?" to the 1940 film One Night in the Tropics, which attained a copyright via registration by Universal Pictures. A few days before the film was released, the comedy pair entered into an agreement with Universal that reserved for them the right to use routines created by them. In 1967, Universal renewed the copyright on One Night in the Tropics. Then in the early 1980s, Universal quitclaimed rights to the comedians' routine to the heirs' companies. (Costello died in 1959. Abbott died in 1974).

Ever since, Abbott and Costello heirs have been operating under the assumption that they own "Who's on first?," suing the Hand to God producers for incorporating the bit into their play about a demonic hand puppet belonging to an introverted student. They subsequently got a huge shock when an appeals court decided that because Abbott and Costello hadn't specifically created their routine for One Night in the Tropics, the heirs couldn't rely on Universal's copyright renewal to enjoy ownership. Stated another way, the appeals court suggested that Abbott and Costello needed to file their own copyright and renewal.

Since the 1976 Copyright Act, authors no longer have to go through the formality of renewal, but there are nevertheless many early- and mid-20th century works whose ownership depends on whether authors complied with the dictates of the older 1909 Copyright Act. The Supreme Court has explored the nuances of renewal before — see Stewart v. Abend, especially if you're an Alfred Hitchcock fan — but not how contributions to copyrighted works factor. That subject of film contributions has been coming up in courts more and more, including the Innocence of Muslims case, where an actress sought to assert an ownership interest in her performance, and the 16 Casa Duse case, pitting a film's director against its producer.

In the cert petition, the Abbott and Costello heirs argue that a movie is not a "composite" work like a periodical — a collection of copyrighted contributions — but that a motion picture is treated as a "unitary work" that merges elements like a script, a musical score, direction, performances, etc.

"So it is here," states the petition. "No part of the ["Who's on First"] Routine was published or registered before a portion of it was performed and embedded into the 1940 Tropics movie. Abbott and Costello had no standing to renew a copyrighted in their embedded Routine; the renewal of the movie copyright renewed the integrated whole."

The Abbott and Costello heirs say the 9th Circuit recognized this in Richlin v. Metro-Goldwyn-Mayer Pictures by holding that the copyright renewal of the film, The Pink Panther, also renewed the previously unpublished treatment and screenplay.

So now they are upset that the 2nd Circuit has taken a different stance by supposedly treating a movie like a periodical and deciding that because "Who's on First" could have been separately published or registered before its incorporation in the movie, Universal's renewal doesn't cover them. The question they are presenting to the high court is "under the 1909 Act, whether material that was incorporated into, and first published by, a movie to become protected by the movie copyright is not protected by renewal of the movie copyright unless such material was created specifically for the movie."

As the Supreme Court decides whether to tackle this case, the justices are being told how copyright law has changed over time. Not only in the way renewals are no longer necessary, but how "publication" isn't as important now as authorship being "fixed in a tangible medium of expression." The Abbott and Costello heirs say the question presented is "critically important" as the 2nd Circuit has "create[d] an unprincipled exception to the 'unified copyright' theory" and "announced [its] new rule at a time when the holders of such rights can no longer comply."

Here's the full petition for a writ of certiorari, authored by Louis Petrich, Jonathan Reichman and Jonathan Thomas.

At his confirmation hearing, Chief Justice John Roberts famously compared being a judge to an umpire who calls balls and strikes. With any luck, the conference will go something like this: Roberts: "Who's on first?"; Anthony Kennedy: "What"; Clarence Thomas: "I don't know"; Ruth Bader Ginsburg: "Why"; Stephen Breyer: "Because"; Samuel Alito: "Tomorrow"; Sonia Sotomayor: "Today"; Elena Kagan: "I don't care."
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 6:59 am

Even more than the mortmain (look it up) that hangs over our cultural heritage -- and which we Nitratevillains hate, because it stops us from legally seeing movies that we wish to -- this indefinite overhang of copyright results in their being no orderly transfer of artifacts from private ownership to the public domain. The lawyers who finally broke Warner Music Group's stranglehold on"Happy Birthday" asked for $4.6 million. EH44 was terrorized by Odeon Entertainment's lawyers because they couldn't be arsed to look at a movie and realize they were looking at one from 1931 instead of the one they owned.

Regardless of the merits of this case, if the only way you can figure out if you are doing something legal is to pay lawyers millions of dollars.... well, don't expect Congress to do anything about it.

Bob
Film is not the art of scholars, but of illiterates.

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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 9:57 am

Copyright exists in the first published appearance of the work. Anything after that is a derivative work repackaging the original copyright. So if the routine first appeared in a radio show, then that is where the copyright exists. And as anyone who follows old time radio knows, there aren't a lot of copyrights in force in old time radio (just people claiming copyright with no legal standing to do so).

That "unitary work" idea isn't going to fly. If that was the case, people could just create a new unitary work and re-copyright material until the end of time. Derivative is derivative and the elements in a derivative work that precede it are protected under the earlier publisher's copyright. Example: Popeye the animated cartoon character relies on the copyright of the Popeye newspaper comic that preceded it.
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 2:29 pm

bigshot wrote:Copyright exists in the first published appearance of the work. Anything after that is a derivative work repackaging the original copyright. So if the routine first appeared in a radio show, then that is where the copyright exists. And as anyone who follows old time radio knows, there aren't a lot of copyrights in force in old time radio (just people claiming copyright with no legal standing to do so).

That "unitary work" idea isn't going to fly. If that was the case, people could just create a new unitary work and re-copyright material until the end of time. Derivative is derivative and the elements in a derivative work that precede it are protected under the earlier publisher's copyright. Example: Popeye the animated cartoon character relies on the copyright of the Popeye newspaper comic that preceded it.


Given the gov'ment record of swings and misses, shouldn't the SCOTUS touch base with the MLB Commissioner?
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 3:37 pm

I have been arguing about the stupidity of some of the copyright provisions for years. Nobody of course listens because the way things stands at the moment, lawyers are laughing all the way to their banks - and governments of course like to stand behind people who are moving money around.

The original idea was that legislation concerning copyright was a sensible way of seeing the owner of a work recompensed during his lifetime for his efforts - and that worked because the earnings came from his own country.

Since the gradual globilisation of everything, copyright now extends worldwide and is subject to different interpretations country to country - although there have been a couple of conventions recently in order to try and make such rules and regulations uniform.

The problem I have with copyright and the inherent rights issues is in those instances where the original owner of the copyright has been dead now for over 50 years and the ownership has been gazumped by some corporate giant who are of the opinion that they are entitled to own the work in perpetuity. This is basically what happened with "Happy Birthday" - which has finally been released to the public domain by a common sense decision.

Basically we should go back to the old idea of copyright where such lay with the an actual person (only) - who can at his whim, licence the work to others during his lifetime. Once such person is dead, copyright is extinguished. How much simpler life would be!
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 5:19 pm

"Who's On First?" is similar to any number of Burlesque routines, one of which, "Watt Street," was used by Hal Roach in "Bargain Day."

Many sources credit John Grant with writing the final version of "Who's On First?" I'm afraid that any claims by A&C heirs are tenuous at best.
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 6:44 pm

Apparently the case has been rattling along for some time, as summarised here - https://www.techdirt.com/articles/20151 ... base.shtml. Sounds very complicated.
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 8:00 pm

One point: if I were the heirs I wouldn't base my claim on the "Who's on First" routine contained in ONE NIGHT IN THE TROPICS. That scene is a throw away where A&C hear themselves on radio doing the routine and stop for a moment to listen. Only part of the routine is heard. However, in 1945 the team performed the entire routine in the film, THE NAUGHTY NINETIES (1945). Why haven't the heirs used that copyrighted film to pursue their claims?
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostFri Apr 21, 2017 10:09 pm

The heirs are drawing on "One Night in the Tropics" (1940) because it is the earliest movie to contain an [abbreviated] version of their famous routine. While you are correct that "The Naughty Nineties" (1945) version is more complete; the movie where Abbott and Costello hear themselves on the radio doing their own routine is "Who Done It?" (1943). The version in "One Night in the Tropics" is much longer than the latter, and is spoiled somewhat by some unfunny cutaways to a stone-face taxi driver.

Perhaps Wheeler and Woolsey's heirs can sue Abbott and Costello's heirs, using a routine with at least some similarities during the map scene in "Cracked Nuts" (1931) as the basis for a claim of "prior use." :-)

Best wishes, Mark
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostSat Apr 29, 2017 5:24 pm

The Baseball Hall of Fame has the skit, a clip from the movie "A Night In The Tropics". The hall also a gold record which is playable. The clip from the movie is played for visitors. Abbott and Costello attended the official ceremony and said they were proud and happy that it will make people laugh. They did not ask for royalties.
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostSat Apr 29, 2017 5:29 pm

miltonebx wrote:The Baseball Hall of Fame has the skit, a clip from the movie "A Night In The Tropics". The hall also a gold record which is playable. The clip from the movie is played for visitors. Abbott and Costello attended the official ceremony and said they were proud and happy that it will make people laugh. They did not ask for royalties.


That was classy of them. It showed old-school values: share, let others enjoy what you enjoyed, be generous, be supportive of non-profit organizations that celebrate the best.

Jim
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Re: Supreme Court Asked to Save Abbott and Costello "Who's o

PostSat Apr 29, 2017 5:39 pm

Donald Binks wrote:I have been arguing about the stupidity of some of the copyright provisions for years. Nobody of course listens because the way things stands at the moment, lawyers are laughing all the way to their banks - and governments of course like to stand behind people who are moving money around.

The original idea was that legislation concerning copyright was a sensible way of seeing the owner of a work recompensed during his lifetime for his efforts - and that worked because the earnings came from his own country.

Since the gradual globilisation of everything, copyright now extends worldwide and is subject to different interpretations country to country - although there have been a couple of conventions recently in order to try and make such rules and regulations uniform.

The problem I have with copyright and the inherent rights issues is in those instances where the original owner of the copyright has been dead now for over 50 years and the ownership has been gazumped by some corporate giant who are of the opinion that they are entitled to own the work in perpetuity. This is basically what happened with "Happy Birthday" - which has finally been released to the public domain by a common sense decision.

Basically we should go back to the old idea of copyright where such lay with the an actual person (only) - who can at his whim, licence the work to others during his lifetime. Once such person is dead, copyright is extinguished. How much simpler life would be!


Agree. Go back to 56 year max. copyright. Long dead copyright holders families and young corporate types who know little to nothing about the property they inherit can go jump in the lake.

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