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Is Abbott & Costello's 'Who's On First?' protected by copyright?

During his confirmation hearing, Chief Justice John Roberts said that being a judge is like being a baseball umpire calling balls and strikes. He may get the chance to make the call on one of baseball's oldest and most venerated comedy routines, Abbott and Costello's "Who's On First?"

It turns out the venerable comedy routine took an unusual route to copyright protection. About 80 years ago, "Who's On First?" was performed on radio, but Abbott and Costello didn't register the copyright or publish the material with a copyright notice, as would have protected them under the Copyright Act of 1909. Instead, they lent part of the routine to the 1940 film "One Night in the Tropics."

The film's copyright was registered by Universal Pictures. Then, before the film was released, the comedy duo entered into a contract with Universal reserving their right to use the routine. Universal renewed its copyright on the movie in 1967.

In 1976, a new Copyright Act was passed, with less formal requirements. Registration was no longer required, but the copyright of older works still depends on whether the owner complied fully with the 1909 Copyright Act.

However, not in a case exactly like this one. In the early 1980s, Universal signed a quitclaim on any rights it had to the routine and assigned them to Abbott and Costello's heirs. Those heirs went happily along believing they owned the copyright until it was used in the Broadway Play "Hand to God." In 2015, the heirs sued the producers of "Hand to God" for copyright infringement.

Last year, the 2nd Circuit Court of Appeals ruled that the heirs had no standing to sue -- and that "Who's On First?" may already be part of the public domain. The 2nd Circuit also suggested that the heirs might try renewing the copyright. The heirs have petitioned the U.S. Supreme Court to hear the case.

The case appears to rely in large part on how copyright protects a work referred to as a "contribution to copyright" like this one. The copyright claim depends on the routine having been fully protected under the copyright for the movie "One Night in the Tropics." It appears that the U.S. Supreme Court has never specifically ruled on whether this partial or derivative copyright is sufficient to protect "Who's on First?"

If the ruling stands that the heirs must renew the copyright or lose it to the public domain, they fear they will lose. "No part of the routine was published or registered before a portion of it was performed and embedded into the 1940 Tropics movie," their petition asserts. "Abbott and Costello had no standing to renew a copyrighted in their embedded routine."

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