Sometimes a lawyer can’t just sit and watch a play. We note things, such as a substantial borrowing from a well-known comedy routine of Abbott and Costello in the critically acclaimed Broadway dark comedy, “Hand to God.” It’s a routine with iconic status. Time Magazine in 1999 named it “Best Comedy Routine of the Twentieth Century”—instantly recognizable from the line “Who’s on First?” which was honored by the American Film Institute as one of the “100 Greatest Movie Quotes of All Time.” We ask ourselves: Was that use cleared? If not, is it a non-infringing fair use? And if so, why?
In December, U.S. District Judge George B. Daniels held in TCA v. McCollum that although unauthorized, this borrowing was indeed a fair use and opined as to why.1
The Routine
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