Bit Parts

Fair Use of Abbott and Costello “Who's on First?” Comedy Routine

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 '.”

Voice Sample in Beyonc' Hit Didn't Violate Plaintiff's Right of Publicity

A New York court once again demonstrated that jurisdiction's pro-content creator bent in defining “advertising purposes or for the purposes of trade” in N.Y. Civil Rights Law '51. Vocalist Monika Miczura filed a right-of-publicity suit against singer Beyonc', her husband Jay-Z, Sony Music Entertainment and others over a sample of Miczura's voice in the defendants' hit recording “Drunk in Love.” Miczura's voice was sampled from an earlier recording, “Bajba, Bajba Pelem,” on which she sang. The sample appears in “Drunk in Love” for more than one-and-a-half minutes. Dismissing the suit, New York Supreme Court Justice Cynthia S. Kern noted: “Courts have consistently held that Civil Rights Law '51 does not apply to works of literary and artistic expression. ' Thus, when a plaintiff's name, portrait, picture or voice is used in a work of artistic expression without her written consent, she has no recourse pursuant to Civil Rights Law '51. ' Similarly, Civil Rights Law '51 does not apply to advertising used to promote the work of art.” Miczura v. Knowles, 162333/2014.

Stan Soocher'is Editor-in-Chief of Entertainment Law & Finance. His new book is'Baby You're a Rich Man: Suing the Beatles for Fun & Profit'(ForeEdge/University Press of New England). For more, visit'www.stansoocher.com.

Fair Use of Abbott and Costello “Who's on First?” Comedy Routine

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 '.”

Voice Sample in Beyonc' Hit Didn't Violate Plaintiff's Right of Publicity

A New York court once again demonstrated that jurisdiction's pro-content creator bent in defining “advertising purposes or for the purposes of trade” in N.Y. Civil Rights Law '51. Vocalist Monika Miczura filed a right-of-publicity suit against singer Beyonc', her husband Jay-Z, Sony Music Entertainment and others over a sample of Miczura's voice in the defendants' hit recording “Drunk in Love.” Miczura's voice was sampled from an earlier recording, “Bajba, Bajba Pelem,” on which she sang. The sample appears in “Drunk in Love” for more than one-and-a-half minutes. Dismissing the suit, New York Supreme Court Justice Cynthia S. Kern noted: “Courts have consistently held that Civil Rights Law '51 does not apply to works of literary and artistic expression. ' Thus, when a plaintiff's name, portrait, picture or voice is used in a work of artistic expression without her written consent, she has no recourse pursuant to Civil Rights Law '51. ' Similarly, Civil Rights Law '51 does not apply to advertising used to promote the work of art.” Miczura v. Knowles, 162333/2014.

Stan Soocher'is Editor-in-Chief of Entertainment Law & Finance. His new book is'Baby You're a Rich Man: Suing the Beatles for Fun & Profit'(ForeEdge/University Press of New England). For more, visit'www.stansoocher.com.