Abbott and Costello were a mid-twentieth century comedy duo popular in the United States. One of their most well known routines was commonly known as “Who’s on First?” and was first performed live in the late 1930s.

In the spring of 2015, a play titled “Hand to God,” opened to critical acclaim on Broadway. The play used a portion of the “Who’s on First?” routine--almost verbatim--in the first scene. Upon discovering the use of the routine in previews before the opening, the comedian’s descendants sent a cease and desist letter to the producers and subsequently sued them for copyright infringement after the producers failed to comply with the cease and desist letter. The defendants asserted that plaintiffs did not have a valid copyright and, even if they did have a valid copyright, the use of the routine was protected under the fair use doctrine.

The plaintiffs ultimately lost their case in the Second Circuit Court of Appeals because they could not properly claim copyright ownership of the routine. However, the court still discussed the defendant’s argument that the fair use doctrine would protect them. How do you think the court addressed the availability of the fair use doctrine in this case?