Wednesday, November 23, 2016

Second Circuit - Copyright Law: Sock Puppet Routine Not Fair Use, Who's On First Film Owner Strikes Out

Hand to God - Sock Puppet Play

In TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016), the U.S. Court of Appeals reversed a decision of the Southern District of New York.   The SDNY found that a sock puppet version of the Abbot & Costello routine "Who's on First" was a transformative fair use "as a matter of law" and dismissed the copyright claims of the owner to a film containing the routine.

The Second Circuit disagreed.  The Second Circuit concluded that the use of a one-minute sock puppet comedy routine was not "fair use" of the original Abbott & Costello routine.  The court concluded that the routine was used as a McGuffin (see Wikipedia explanation of MacGuffin fictional device here)

Walking through the factors of fair use, the Second Circuit concluded that the use was not transformative, was commercial and otherwise not limited or incorporated in a way that would constitute fair use.

The Second Circuit, however, found that the owner of the film with the Who's on First routine did not own the copyright and thus dismissed the case. 

Read the decision here.

 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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