Is reusing a scene from one play in another play fair use? TCA v. MCCOLLUM

A copyright is a set of exclusive right granted to the creator of a new expressive work or art. When an artist paints a picture, takes a photograph or creates art in some other tangible medium, the artist is granted a copyright to their creation. A copyright grants its owner the exclusive right to reproduce, distribute, display, perform, transmit or make derivative works based on the original work. If someone other than the the owner of copyright attempts to exercise one of these exclusive rights, that can be considered copyright infringement. A copyright owner can file a lawsuit to stop copyright infringement with an injunction and can request monetary damages for copyright infringement which has occurred.

The purpose of copyright law is to promote creativity and advance society, therefore copyright law will excuse what would normally considered copyright infringement in some circumstances. A defendant will not be liable for copyright infringement if the defendant’s use of a copyrighted work is considered a fair use. Fair use generally falls into two categories, (1) commentary and criticism, or (2) parody. Fair use is a defense to an allegation of copyright infringement that must be plead by the defendant.

When a court is presented with a fair use defense to copyright infringement, the court will review several factors to determine if the use qualifies as a fair use. Those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market for the copyrighted work. How a court will weigh each of these factors is fact specific and open to interpretation, therefore it is useful to review court cases to learn how courts have interpreted fair use in the past.

Whether or not fair use applies to a case can sometimes be difficult to discern, therefore it is useful to study case law.

TCA TELEVISION CORP. v. MCCOLLUM, 1:16-cv-0134 (2nd Cir 2016) is a case where a play borrowed a portion of a famous comedic performance and fair use was found to not apply.

Defendants, used one minute and seven seconds of dialogue from “Who’s On First?” in a dark comedy Broadway play entitled “Hand to God”. In the play the main character, Jason, tries to impress a girl by performing the “Who’s On First?” routine with his sock-puppet. In the play, Jason claims that he came up with the routine, but the sock-puppet character reveals that the routine came from a famous 1950’s comedy duo.

Abbott and Costello is the comedy duo that originally came up with the “Who’s On First?” routine. Plaintiffs were assigned the copyright to the comedy routine and filed suit against defendant’s for copyright infringement. The district court dismissed the claim, finding that Defendant’s use of the comedy routine had a “new and different function” in the play and was therefore a transformative fair use. Plaintiff appealed that decision to the Court of Appeals for the Second Circuit.

The Second Circuit found that Defendant’s verbatim copying of the “Who’s On First?” routine did not qualify for fair use. With respect to he first fair use factor the court reasoned, the critical inquiry in determining whether a use is transformative is whether the new work uses the copyrighted material itself for a purpose, or imbues the copied work with a character, different from that for which it was created. In the case of the Defendants work, this difference was not present. For the second factor, the Circuit Court found this factor weighed “strongly” in Plaintiff’s favor because the creative, as opposed to factual, nature of “Who’s On First?” lies at the heart of copyright’s intended protection. The third fair use factor weighed in favor the Plaintiff because Defendant engaged in substantial copying without justification. The Circuit Court found that the District Court erred in not considering the effect of Defendant’s use on the Plaintiff’s licensing revenues. The Circuit Court found that Defendant’s use would adversely affect the commercial market for future licensing.

Based on these findings the Circuit Court reversed the District Courts finding of fair use.

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