“Who’s On First?” Routine goes to the Supreme Court
The heirs to Abbott & Costello recently sued a Broadway play that involves quotation of the classic “Who’s On First?” comedy routine. Court decisions so far have disagreed as to whether the quotation in the play is a fair use or not, but a more fundamental challenge has also been raised. The defendants claim that the routine has existed for long enough that it is in the public domain. The plaintiffs are claiming that the routine was unpublished prior to its inclusion in the 1940 movie, “One Night in the Tropics”, and that renewals for that movie mean that it is still in copyright today. The heirs have just petitioned for certiorari at the Supreme Court on this point.
Law360 – https://www.law360.com/ip/articles/915189/abbott-costello-heirs-take-copyright-case-to-high-court
Hollywood Reporter – http://www.hollywoodreporter.com/thr-esq/supreme-court-asked-save-abbott-costello-whos-first-copyright-995770 Baseball diamond image by Wikimedia Commons user CBurnett
A lot of people have been circulating this piece from The Atlantic, which is apparently a paean to the never-approved Google Books settlement. I can’t finish reading it, because it starts of with such extreme romanticizing of “what might have been”. My own take, to paraphrase my Twitter thread on this is: the Google Books settlement was always and forever a TERRIBLE THING FOR THE PUBLIC INTEREST. It could have potentially created a massive online library, but access would have been only via Google, and only at their benevolent discretion. The settlement would not have answered -any- questions about whether what they did was legal in the general sense, and whether others could do it, too. The settlement not getting approved eventually meant that we got a court ruling affirming that scanning for searchability can be fair use, and that accessibility, and potentially computational analysis, are fair use, too. One of the biggest barriers that I see to massive public access to a deep set of digitized literature is that NO ONE IS FUNDING LIBRARIES AND ARCHIVES in our attempts to capitalize on the Google Books and Hathi Trust decisions that made clear the broad scope of fair use for this kind of work.
James Grimmelmann has also tweeted about this, at greater length than me, and with deeper consideration for the details of class-action law in this case. Thread starts here; continues here.
