TCA Television Corp. v. McCollum
839 F.3d 168
| 2d Cir. | 2016Background
- Abbott and Costello's Who’s on First? routine is a preexisting, copyrighted comedic work with a long licensing history.
- UPC engaged Abbott & Costello under July 1940 and November 1940 agreements to use preexisting routines in Tropics and related films; these agreements were licenses, not assignments of copyright.
- The routine was later expanded in The Naughty Nineties (1945) and UPC registered copyrights for Tropics and The Naughty Nineties.
- A 1984 Quitclaim from Universal purportedly conveyed UPC’s rights to Abbott & Costello Enterprises, creating later ownership disputes among heirs (TCA, Hi Neighbor, Colton).
- Hand to God, a Broadway play, verbatimly incorporates a substantial portion of the Who’s on First? routine in Act I, Scene 2, prompting Abbott/Costello heirs to sue for infringement.
- The district court dismissed on fair use grounds; plaintiffs’ amended complaint also contends a valid copyright ownership exists; the Second Circuit reverses on ownership grounds but affirms on the alternative basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hand to God’s use of Who’s on First? is fair use | Plaintiffs argue the use is transformative and non-infringing fair use. | Defendants contend the use is sufficiently transformative to warrant fair use. | Not fair use; the use is not transformative and is excessive. |
| Whether plaintiffs plausibly plead ownership of a valid copyright in the Routine | Plaintiffs argue UPC/AB&C acquisitions and quitclaim grant valid ownership. | Defendants contend there was no assignment, work-for-hire, or merger creating a valid copyright in the Routine. | Plaintiffs fail to plead a plausible valid copyright; dismissal affirmed on ownership grounds. |
Key Cases Cited
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (multifactor fair use, transformativess considered; not automatic)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (transformative use doctrine; substantial modification required)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (fair use and transformative use analysis; information vs. creative works)
- Swatch Group Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) (contextual discussion of fair use and data usage)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (nonexclusive fair use factors; purpose, nature, amount, effect on market)