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
Labels: abbott & costelllo, copyright infringement, copyright law, fair use doctrine, hand to god, sock puppets, theater law, who's on first
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.