Lack of Valid Copyright Throws Out “Who’s on First?” Copyright Claim

Abbott and Costello’s successors-in-interest sued the author and producers of the play Hand to God for copyright infringement. The play used a little over a minute of the Abbott and Costello “Who’s on First?” routine almost verbatim without authorization. The district court ruled that the use of the “Who’s on First?” routine in the play Hand to God was a fair use and not copyright infringement. My post Who’s on First? Copyright Infringement Question as Tangled as the Routine discusses the district court’s ruling.

On appeal, the Second Circuit held that the district court erred in ruling that the use of the routine in the play was a fair use. Nevertheless, the Second Circuit upheld the district court’s ruling in favor of the play’s author and producers on the alternative ground that Abbott and Costello’s successors-in-interest failed to plead a valid copyright interest. Since the play’s creators did not cross appeal the district court’s ruling that the Abbott and Costello successors-in-interest owned a valid copyright, the only issue on appeal was whether the district court correctly ruled that the use of the routine in the play was a fair use. The Second Circuit was obligated to rule on the fair use question before considering whether to uphold the district court’s ruling on an alternative theory. Had the Second Circuit affirmed the district court’s fair use analysis, the Second Circuit would not have considered the copyright validity question.

The Second Circuit did not discuss whether it was even appropriate for the district court to consider fair use on a Rule 12(b)(6) motion to dismiss for failure to state a claim. Fair use is an affirmative defense and is the defendant’s burden to prove, not the plaintiff’s. Fair use should not be decided on a motion to dismiss the plaintiff’s complaint for failure to state a claim. 

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Not Copyright Infringement to Provide Perpetual Access to Sample

Louis K. Smith wrote The Hardscrabble Zone, a book that he marketed through online ebook distributor Smashwords, Inc. Smith’s agreement with Smashwords allowed Smashwords to distribute samples of Smith’s book. One customer stored a sample of Smith’s book in the customer’s Barnes & Noble digital locker system.  Barnes & Noble’s digital locker system operates as an online bookshelf that a customer with an account can populate with that customer’s ebook purchases and free samples. 

Smith terminated his agreement with Smashwords, but the sample of his book remained in the customer’s Barnes & Noble digital locker. The customer accessed the sample twice after Smith terminated his agreement with Smashwords. Smith’s widow sued Barnes & Noble for copyright infringement, arguing that Barnes & Noble was not allowed to provide customer access to the sample after Smith terminated his agreement with Smashwords. The district court granted summary judgment in favor of Barnes & Noble. The Second Circuit affirmed.

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