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TCA TV Corp. v. McCollum - 839 F.3d 168 (2d Cir. 2016)


Although commentary frequently constitutes fair use, it is not essential that a new creative work comment on an incorporated copyrighted work to be transformative. Rather, to qualify as a fair use in the absence of such a different purpose, the new work generally must alter the original with new expression, meaning, or message. Even if such commentary is not essential to fair use, that commentary or criticism on another's work is among the best recognized justifications for copying because such commentary or criticism is in the public interest and frequently requires quoting the copyrighted work to be effective.


Successors-in-interest to the estates of William "Bud" Abbott and Lou Costello filed a copyright infringement case against the producers of Hand to God and the play's author, Robert Askins for the use of a portion of the iconic Abbott and Costello comedy routine, Who's on First?, in Act I of Hand to God. The defendants asserted the fair use defense, which was recognized by the district court. Thus, the district court entered a judgment of of dismissal in favor of the defendants. The plaintiffs appealed.


Were the plaintiffs entitled to judgment in their favor?




The court held that the defendants' verbatim incorporation of more than a minute of the Who's on First? routine in their commercial production was not a fair use of the material. It was not transformative, as defendants neither used that portion of the routine for a different purpose nor imbued the original with a different message, meaning, or expression and defendants failed to persuasively justify their use of the routine as required by a secondary user that appropriated a creative work without alteration. Nevertheless, the court affirmed dismissal because plaintiffs failed to plausibly plead ownership of a valid copyright, as their efforts to do so on theories of assignment, work-for-hire, and merger all failed as a matter of law.

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