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'Who's On First?' copyright case may be headed for Supreme Court

It's one of America's most venerable Vaudeville comedy routines. Abbott and Costello's "Who's On First?" started getting people laughing about 80 years ago. The amusing play-on-words routine about baseball was first on radio, but then appeared in the film "One Night in the Tropics" in 1940.

The routine may need all its humorous power -- and Chief Justice John Roberts' love of baseball -- if its copyright is to survive, however. Roberts, during his confirmation hearing, famously compared being a judge to being a baseball umpire calling balls and strikes, and he will be among those calling the game in a copyright infringement suit, if the high court accepts certiorari.

The dispute involves the question of who owns the copyright to "Who's On First?" Is it Abbott and Costello's heirs or the public? Due to an unusual path to copyright, its owners may have failed to take a key step to protect it. On the other hand, they may not have had any right to take that step when it would have made a difference.

What was unusual about the routine's path to copyright?

Abbott and Costello never registered "Who's On First?" for copyright or issued a publication with the copyright reserved, either of which would have complied with the 1909 Copyright Act. Instead, the routine was copyrighted as part of "One Night in the Tropics," which was owned by Universal Pictures. Universal renewed its copyright for the picture in 1967. Then, in the early 80s, Universal signed a quitclaim for the routine over to the heirs' companies. In the intervening period, the 1976 Copyright Act was passed, eliminating the requirement to register copyrights.

In 2015, the heirs sued the producers of a Broadway show "Hand to God" for copyright infringement. They had used the routine in part of their play. The suit was appealed to the 2nd Circuit Court of Appeals, which ruled against the heirs.

The court saw two possible legal scenarios. First, the heirs could go back and reply for a renewal of the copyright. But if the copyright wasn't covered by the umbrella of "One Night in the Tropics," they might not have standing to do that. "No part of the routine was published or registered before a portion of it was performed and embedded into the 1940 Tropics movie," they write in their petition for cert." Abbott and Costello had no standing to renew a copyrighted in their embedded routine."

The other scenario was that the copyright to "Who's On First?" belongs in the public domain.

The Supreme Court has apparently never decided a case just like this one, so there is a possibility the court will take up the case of this beloved routine.

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