Bit Parts

The U.S. District Court for the Southern District of New York ruled that inclusion of about one minute of the famous Abbott and Costello “Who's on First?” comedy routine in the theatrical dark comedy Hand to God was a copyright fair use. TCA Television Corp. v. McCollum, 15 Civ. 4325. District Judge George B. Daniels observed the defendants “characteriz[e] the use as 'part of a sophisticated artistic expression.' Specifically, Jason, the play's shy and repressed main character, finds a creative escape from his religious small-town life through his [demonic] hand sock-puppet, named Tyrone,” with whom Jason reenacts the comedy routine segment. District Judge Daniels went on to find a transformative use of the original routine, in noting: “Although Plaintiffs contend that Defendants' use of the Routine does not 'add[] anything materially new or provide[] a different aesthetic,' and claim that the actor playing Jason 'merely re-enact[s] the [R]outine as Abbott and Costello performed it,' the tone of the new performance is markedly different. Hand to God uses the Routine to create context and 'a background for the ever more sinister character development of Tyrone.” The district judge then found: “It is the performance through the anti-hero puppet, Tyrone, that, according to Defendants, creates new aesthetics and understandings about the relationship between horror and comedy that are absent from Abbott and Costello's performances of the Routine '.”

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