Who’s On First? What Happened to Common Sense?

Like What the Heck? What Happened to Common Sense?

I am reading an article about another law suite at Techdirt. This time, over Abbott and Costello’s famous skit “Who’s On First ?. It was put in as a bit in play, Hand of God. The right owners are not happy with that and won’t stand for it. Just in case you haven’t heard of it. Here it is.

Who’s On First

In my humble opinion, it is a funny skit. I even recall a few local talents “covering” it. While some think covering a work is theft, I side with John Lennon. In a letter responding to the Fab Four “ripping off” black musicians:

Money’, ‘Twist ‘n’ Shout’, ‘You really got a hold on me’ etc, were all numbers we (the Beatles) used to sing in the dancehalls around Britain, mainly Liverpool. It was only natural that we tried to do it as near to the record as we could – i always wished we could have done them even closer to the original. We didn’t sing our own songs in the early days – they weren’t good enough – the one thing we always did was to make it known that these were black originals, we loved the music and wanted to spread it in any way we could. in the ’50s there were few people listening to blues – R + B – rock and roll, in America as well as Britain. People like – Eric Burdons Animals – Micks Stones – and us drank ate and slept the music, and also recorded it, many kids were turned on to black music by us.

It wasn’t a rip off.
it was a love in,


English: Screen capture from the Internet Arch...
English: Screen capture from the Internet Archive, taken from “This Is Your Life Lou Costello”. Around the 00:48 mark. (Photo credit: Wikipedia)

When I thought to blog this, I was going to use the cover I mentioned, not the original. Since the suit is over the skit being used in a play, performed by a sock puppet, I had second thoughts.  I would hate to tempt the legal vultures another target. They seem willing to go after anything remotely similar.Take care even asking “Who’s on First?” at a real ball game.  I am also wondering why they didn’t go after

Take care even asking “Who’s on First?” at a real ball game.  I am also wondering why they didn’t go after Eight is Enough when they titled an episode “Who’s On First ?”.  Yeah, I know you can’t copyright a title but the episode did involve a stage, human, and the it is a comedy series… not a serious play with a sock puppet such as the one in question here.

The suit is dismissed but, I still have issues with it. For now, let us assume that the “right holders” are just not keen on love-ins. That, I would be okay with, not fine but, barely okay. After all, I would be a hypocrite if I did not respect their freedom of expression. Haters have a right to hate. People have a right to be greedy and selfish. Why is the case now tossed?  In short, because it was deemed not cause any harm or loss to the copyright holders.

While I am pleased that the court recognizes that a sock puppet in a play is not going to rob cash from the Abbott and Costello heirs.  It is what they make no statement about that has me irked.  Clearly, common sense was not in the courtroom.

As Mike Masnick points out in his article:

  • Who actually wrote the skit, is questionable Back to Vaudeville days, jokes like this were often passed around and used by other acts as well.  Most likely the work is public domain.
  • It was performed by on of the famous duo before they even teamed up. After they teamed up it became one of their signature skits. After that, its performance in certain movies was copyrighted, by Universal and not by the duo.
  • The rights transferred to  the heirs were not for the skit in general, only for its performance in two movies and only for the skit specifically.
  • The case was dismissed, more or less, siding with the play.

Mike Masnick has more details on why the case lacks legal standing, but I am focusing on only the points above. Those regarding holding the rights and ownership. So, if the above are true:

      • If copyright is given to content creators how could the rights be given to Universal?
      • Bud Abbott reportedly stated that was taken from an old routine “Who’s The Boss ?&qout;. His wife recalls him performing it with another comedian before Costello. Who wrote the skit? (Wikipedia)
      • If this is a play, what about performance rights?
      • Why is this not a frivolous lawsuit… nevermind, I guess it is.
      • Like Mr. Masnick, I am at a loss as to why the court doesn’t rule on public domain status of the skit.

I think, if we knew the original creator of the skit, we should put the blame on that individual. Clearly, they forgot to add more lines;

“What about Sense, you know, Common Sense?”

“Oh, he left the team years ago”

“Yeah, when did he leave?”

“Right after Universal got a copyright on this ancient skit”

Unfortunately, it seems that Mr. Common Sense passed some time ago.

While “Who’s On First?” is a timeless classic.  Timeless classics are met to be built on.  Just as Abbott claims he did with “Who’s the Boss?”  Stay tuned to find out Who is in court next.

 

  • Broadway play wins lawsuit over heirs to ‘Who’s on First’ (jsonline.com)