`TCA Television Corp. v. McCollum
`
`In the
`United States Court of Appeals
`For the Second Circuit
`________________
`
`August Term, 2015
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`(Argued: June 23, 2016 Decided: October 11, 2016)
`
`Docket No. 16‐134‐cv
`________________
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`TCA TELEVISION CORP., HI NEIGHBOR, DIANA ABBOTT COLTON,
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`Plaintiffs‐Appellants,
`
`—v.—
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`KEVIN MCCOLLUM, ROBERT ASKINS, DOES, ABC COMPANIES, 1‐10, HAND TO GOD
`LLC, THE ENSEMBLE STUDIO THEATER, INC., MANHATTAN CLASS COMPANY, INC.,
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`Defendants‐Appellees,
`
`BROADWAY GLOBAL VENTURES, CMC, MORRIS BERCHARD, MARIANO V.
`TOLENTINO, JR., STEPHANIE KRAMER, LAMS PRODUCTIONS, INC., DESIMONE
`WINKLER, JOAN RAFFE, JHETT TOLENTINO, TIMOTHY LACZYNSKI, LILY FAN, AYAL
`MIODOVNIK, JAM THEATRICALS LTD., KEY BRAND ENTERTAINMENT INC.,
`
`________________
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`Defendants.
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`1
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`
`
`Before:
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`JACOBS, CALABRESI, RAGGI, Circuit Judges.
`________________
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`On appeal from a judgment entered in the Southern District of New York
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`(Daniels, J.) dismissing an action for copyright infringement by the heirs of
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`William “Bud” Abbott and Lou Costello, plaintiffs challenge the district court’s
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`determination, made as a matter of law on a Rule 12(b)(6) motion, that
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`defendants’ verbatim use of a portion of Abbott and Costello’s iconic comedy
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`routine, Who’s on First?, in the recent Broadway play Hand to God, qualified as
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`a non‐infringing fair use. Defendants defend the district court’s fair use ruling,
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`and further argue that dismissal is supported, in any event, by plaintiffs’ failure
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`to plead a valid copyright interest. We here conclude that defendants’
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`appropriation of Who’s on First? was not a fair use, but, nevertheless, affirm the
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`challenged judgment on defendants’ alternative invalidity ground.
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`AFFIRMED.
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`________________
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`JONATHAN D. REICHMAN (Jonathan W. Thomas, on the brief), Kenyon
`& Kenyon LLP, New York, New York, for Plaintiffs‐Appellants.
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`
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`MARK J. LAWLESS, Law Office of Mark J. Lawless, New York,
`New York, for Defendants‐Appellees.
`________________
`2
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`
`
`REENA RAGGI, Circuit Judge:
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`
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`In this action for copyright infringement, plaintiffs, successors‐in‐interest
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`to the estates of William “Bud” Abbott and Lou Costello, appeal from a
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`judgment of dismissal entered in the United States District Court for the
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`Southern District of New York (George B. Daniels, Jr., Judge) in favor of
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`defendants, who include the producers of Hand to God and the play’s author,
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`Robert Askins. See TCA Television Corp. v. McCollum, 151 F. Supp. 3d 419
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`(S.D.N.Y. 2015). Plaintiffs assert that the district court erred in concluding from
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`the amended complaint that defendants’ use of a portion of the iconic Abbott and
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`Costello comedy routine, Who’s on First?, in Act I of Hand to God was so
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`transformative as to establish defendants’ fair use defense as a matter of law. See
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`Fed. R. Civ. P. 12(b)(6). Defendants here not only defend the district court’s fair
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`use determination but also argue that affirmance is warranted, in any event, by
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`plaintiffs’ failure to plead a valid copyright interest. The district court rejected
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`3
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`that argument. See TCA Television Corp. v. McCollum, 151 F. Supp. 3d at 430–
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`31.1
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`
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`For the reasons explained herein, we conclude that defendants’ verbatim
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`incorporation of more than a minute of the Who’s on First? routine in their
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`commercial production was not a fair use of the material. Nevertheless, we
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`affirm dismissal because plaintiffs fail plausibly to allege a valid copyright
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`interest.
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`I.
`
`Background
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`The
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`following
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`facts derive
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`from plaintiffs’ amended complaint,
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`incorporated exhibits, and documents susceptible to judicial notice. See Goel v.
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`Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (acknowledging that, on motion to
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`dismiss, courts may consider documents appended to or incorporated in
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`complaint and matters of which judicial notice may be taken); Island Software &
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`1 Defendants do not cross‐appeal the district court’s denial of dismissal on the
`ground of copyright invalidity; rather, they argue it as an alternative ground for
`affirmance, even if plaintiffs’ fair use challenge prevails. In this opinion, we first
`address plaintiffs’ challenge to the fair use determination supporting dismissal
`because if we were to identify no error in that ruling there would be no need to
`consider defendants’ proposed alternative ground for affirmance.
`
`4
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`
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`Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (stating
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`that court may take judicial notice of copyright registrations). For purposes of
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`this appeal, we presume these facts to be true. See Anschutz Corp. v. Merrill
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`Lynch & Co., 690 F.3d 98, 102 (2d Cir. 2012).
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`A. Abbott and Costello’s Who’s on First? Routine
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`
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`Abbott and Costello were a popular mid‐Twentieth Century comedy duo.
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`One of their routines, commonly referred to as Who’s on First? (also, the
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`“Routine”), has become a treasured piece of American entertainment history.2
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`The Routine’s humor derives from misunderstandings that arise when Abbott
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`announces the roster of a baseball team filled with such oddly named players as
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`“Who,” “What,” and “I Don’t Know.” A rapid‐fire exchange reveals that “who’s
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`on first” need not be a question. It can be a statement of fact, i.e., a player named
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`“Who” is the first baseman. Later parts of the routine reveal, after similar comic
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`misunderstandings, that a player named “What” is the second baseman, and one
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`named “I Don’t Know” is the third baseman.
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`
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`2 In 1999, Time magazine named the Routine the best comedy sketch of the
`Twentieth Century. See Am. Compl. ¶ 37; Best of the Century, Time, December
`31, 1999, at 73.
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`5
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`B.
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`Agreements Pertaining to Rights in the Routine
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`The parties cite various contracts and copyright filings spanning more than
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`40 years as relevant to claimed rights in the Routine.
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`1. Abbott and Costello’s Agreements with UPC
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`a. The July 1940 Agreement
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`Abbott and Costello first performed Who’s on First? in the late 1930s,
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`notably on a 1938 live radio broadcast of The Kate Smith Hour. The Routine was
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`published for purposes of federal copyright law when Abbott and Costello
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`performed a version of it in their first motion picture, One Night in the Tropics
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`(“Tropics”).3
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`The team appeared in Tropics pursuant to a July 24, 1940 contract (the
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`“July Agreement”) with Universal Pictures Company, Inc. (“UPC”). The July
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`Agreement guaranteed Abbott and Costello a minimum of five weeks’ work at a
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`3 Viewing the facts in the light most favorable to plaintiffs, the district court
`discussed in some detail why (1) before Tropics’s release, the Routine was
`protected by common law copyright; and (2) the movie’s release could constitute
`“publication” of the Routine, extinguishing any common law right and requiring
`registration and deposit with the federal Copyright Office to claim any statutory
`copyright protection. See TCA Television Corp. v. McCollum, 151 F. Supp. 3d at
`427–30.
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`6
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`pay rate of $3,500 per week. In turn, Abbott and Costello (the “Artists”) agreed
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`to grant UPC (the “Producer”) certain rights and to furnish it with certain items.
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`We reproduce the relevant text here, adding bracketed signals and highlighting
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`to distinguish various provisions:
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`[1] The Artists expressly give and grant to the Producer
`the sole and exclusive right to photograph and/or
`otherwise reproduce any and all of their acts, poses,
`plays and appearances of any and all kinds during the
`term hereof, and [2] further agree [a] to furnish to the
`Producer, without charge to it, the material and routines
`heretofore used and now owned by the Artists for use
`by the Producer in the photoplay in which they appear
`hereunder and for which the Producer shall have the
`exclusive motion picture rights, and [b] to record their
`voices and all instrumental, musical and other sound
`effects produced by them, and [c] to reproduce and/or
`transmit the same, either separately or in conjunction
`with such acts, poses, plays and appearances as the
`Producer may desire, and further [3] give and grant to
`the Producer solely and exclusively all rights of every
`kind and character whatsoever in and to the same, or
`any of them, perpetually,
`including as well the
`perpetual right to use the names of the Artists and
`pictures or other reproductions of the Artists’ physical
`likenesses, and recordations and reproductions of the
`Artists’ voices, in connection with the advertising and
`exploitation thereof.
`
`7
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`J.A. 168–69.
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`b.
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`The November 1940 Agreement
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`On November 6, 1940, only days before Tropics’s public release, Abbott
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`and Costello entered into a new multi‐year/multi‐picture agreement with UPC
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`(the “November Agreement”).4 That contract terminated the July Agreement
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`without prejudice to, among other things, UPC’s “ownership . . . of all rights
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`heretofore acquired,” including those “in or to any . . . material furnished or
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`supplied by the Artists.” Id. at 162. In the November Agreement, Abbott and
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`Costello agreed “to furnish and make available to the Producer all literary and
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`dramatic material and routines heretofore used by the Artists either on the radio
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`or otherwise and now owned by the Artists,” and acknowledged that “the
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`Producer shall have the right to use said material and routines to such extent as
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`the Producer may desire in connection with any photoplay in which the Artists
`
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`4 Plaintiffs’ amended complaint cites only the November Agreement with UPC as
`the relevant contract. See Am. Compl. ¶ 43. By the time that agreement was
`signed, however, Abbott and Costello presumably had already finished their
`work on Tropics—including any additions to the Routine reflected in that movie.
`Thus, it would appear that the team’s work on Tropics was pursuant to the July
`Agreement, discussed supra at I.B.1.a. The discrepancy does not affect our
`analysis here because, in the district court, defendants conceded that, at least for
`purposes of their motion to dismiss, the July Agreement had “in effect, been
`pleaded” by plaintiffs in support of their claim. Sept. 9, 2015 Hr’g Tr. 2–3.
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`8
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`
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`render their services hereunder and in connection with the advertising and
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`exploitation of such photoplay.” Id. at 129. Abbott and Costello agreed that they
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`would “not use or license, authorize or permit the use of any of the material
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`and/or routines” so referenced “in connection with motion pictures” by others
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`than UPC for specified times. Id. Nevertheless, they reserved the right to use
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`materials and routines created by them (without the assistance of UPC writers)
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`“on the radio and in personal appearances.” Id. at 129–30.
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`2. UPC Registers a Copyright for Tropics
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`In November 1940, UPC registered a copyright for Tropics with the United
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`States Copyright Office, which it renewed in December 1967. See id. at 36, 39–40.
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`3. UPC Uses an Expanded Version of the Routine in The Naughty
` Nineties and Registers a Copyright for that Movie
`
`
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`In 1945, Abbott and Costello performed an expanded version of Who’s on
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`First? in another movie for UPC, The Naughty Nineties. That version maintains
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`the core of the Routine—with “Who” on first base, “What” on second, and “I
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`Don’t Know” on third—but several new players take the field: left fielder “Why,”
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`center fielder “Because,” pitcher “Tomorrow,” catcher “Today,” and shortstop “I
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`9
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`Don’t Care.”
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`In June 1945, UPC registered a copyright for The Naughty Nineties with
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`the United States Copyright Office, which it renewed in 1972. See id. at 37, 41–
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`42; Am. Compl. ¶ 45.5
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`4. The 1944 Copyright Registration for “Abbott and Costello
` Baseball Routine”
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`In April 1944, a work entitled “Abbott and Costello Baseball Routine” was
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`registered with the Copyright Office “in the name of Bud Abbott and Lou
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`Costello, c/o Writers War Board.” J.A. 114. The certificate indicates that this
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`“Baseball Routine” was published on “March 13, 1944” in “‘Soldier Shows,’ No.
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`19.” Id.6 The record suggests that this registration was not renewed, prompting
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`the Copyright Office to conclude that the work had entered the public domain in
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`5 By operation of the Sonny Bono Copyright Term Extension Act, Pub. L. No.
`105–298, 112 Stat. 2827 (1998), the renewal term for Tropics will not expire until
`2035 and that for The Naughty Nineties will not expire until 2040. See 17 U.S.C.
`§ 304(b).
`
` 6
`
` The George Mason University Libraries, in their “Guide to the John C. Becher
`Soldier Show Collection, 1940‐1953,” indicates that “Soldier Shows” refers to
`entertainments “made by soldiers for soldiers,” with the object of “mass
`participation” to raise morale. J.A. 208–09. Because the record here is devoid of
`any information about either Soldier Shows generally or Soldier Shows, No. 19 in
`particular, we make no assumptions about the content of the material that is the
`subject of the 1944 copyright registration.
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`10
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`1972, and, on that ground, to reject a 1984 application for a derivative work
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`registration filed by the children of Abbott and Costello based on the 1944
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`
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`registration.
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`
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`5.
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`The 1984 Quitclaim Agreement
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`Plaintiffs do not rely on the 1944 registration to support their copyright
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`claim here. Rather, they claim to have succeeded to UPC’s copyright interests in
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`the Routine as performed in Tropics and The Naughty Nineties based on a
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`quitclaim agreement dated March 12, 1984 (the “Quitclaim”).
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`In the Quitclaim, which was subsequently recorded with the Copyright
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`Office, UPC’s successor‐in‐interest, Universal Pictures (“Universal”), granted
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`Abbott & Costello Enterprises (“A & C”), a partnership formed by the heirs of
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`Abbott and Costello,7 “any and all” of Universal’s rights, title, and interest in the
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`Routine. Id. at 45. Universal stated that it did so relying upon A & C’s
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`representation that it was “a partnership composed of the successors in interest
`
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`7 Bud Abbott died in 1974; Lou Costello died in 1959. See Bud Abbott, Straight
`Man to Lou Costello, Is Dead, N.Y. Times, April 25, 1974, at 42; Lou Costello, 52,
`Dies on Coast; Comic Had Teamed with Abbott, N.Y. Times, Mar. 4, 1959, at 31.
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`11
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`to the late Bud Abbott and Lou Costello” and, therefore, “the owner of copyright
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`in and to the Routine.” Id. at 46.
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`A & C dissolved in 1992, with 50% of its assets transferred to TCA
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`Television Corporation, a California entity owned by Lou Costello’s heirs, and
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`the other 50% divided evenly between Bud Abbott’s heirs, Vickie Abbott
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`Wheeler and Bud Abbott, Jr. Wheeler would later transfer her 25% interest to a
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`California partnership, Hi Neighbor, and Abbott, Jr. would transfer his 25%
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`interest to Diana Abbott Colton. It is by operation of the Quitclaim and the
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`referenced dissolution and transfer agreements that plaintiffs TCA Television, Hi
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`Neighbor, and Colton now claim a copyright interest in Who’s on First?.
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`
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`C.
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`Hand to God
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`As described in the amended complaint, Hand to God (the “Play”) is “a
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`dark comedy about an introverted student in religious, small‐town Texas who
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`finds a creative outlet and a means of communication through a hand puppet,
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`wh[ich] turns into his evil or devilish persona.” Am. Compl. ¶ 58. After two
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`successful off‐Broadway runs, Hand to God opened to critical acclaim on
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`Broadway in the spring of 2015. Through press coverage, plaintiffs learned that
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`12
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`Hand to God incorporated part of the Routine in one of its “key scene[s],”
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`without license or permission. Id. at ¶ 63. While the Play was still in previews
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`for its Broadway opening, plaintiffs sent defendants a cease and desist letter.
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`Defendants’ failure to comply with that request prompted this lawsuit.
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`1.
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`The Relevant Scene
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`Plaintiffs allege that the Play infringes their copyright in the Routine by
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`using its first part—that is, the part pertaining to first baseman “Who”—in Act I,
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`Scene 2. In that scene, which occurs approximately 15 minutes into the Play, the
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`lead character, “Jason,” and the girl with whom he is smitten, “Jessica,” have just
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`emerged from the basement of their church, where they had been participating in
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`a Christian puppet workshop. Jason tries to impress Jessica by using his sock
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`puppet, “Tyrone,” to perform, almost verbatim, a little over a minute of Who’s
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`on First?. Jason plays the Bud Abbott role, while Tyrone assumes Lou Costello’s
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`character.8
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`8 The Routine is used in the Play as follows:
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`JASON
`JESSICA
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`. . . . You wanna see something[?]
`Ummm.
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`13
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`JASON
`You’ll like it.
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`JESSICA
`Yeah?
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`JASON
`I think you’ll like it.
`
`JESSICA
`Okay.
`
`JASON
`Okay.
`
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`Jason slicks back his hair. Takes a deep breath and then
`says...
`
`JASON
`
`TYRONE
`
`JASON
`TYRONE
`
`JASON
`
`Well Costello, I’m goin’ to New York with
`you. You know Buck Harris the Yankee[s’]
`manager gave me a job as coach as long as
`you’re on the team.
`Look Abbott, if you’re the coach, you must
`know all the players.
`I certainly do.
`Well I’ve never met the guys. So you’ll
`have to tell me their names and then Iʹll
`know who’s playing on the team.
`Oh I’ll tell you their names, but you know
`it seems to me they give these ball players
`now‐a‐days very particular names.
`
`As he starts he’s a little aspergersy. As he goes on he gets
`more and more comfortable.
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`TYRONE
`JASON
`
`TYRONE
`
`You mean funny names?
`Well let’s see we have on the bags, Who’s
`on first, What’s on second, I don’t know is
`on third...
`That’s what I want to find out.
`
`14
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`JASON
`I say Who’s on first, What’s on second, I
`don’t know’s on third.
`Are you the manager?
`Yes.
`You gonna be the coach too?
`Yes.
`And you don’t know the fellows’ names.
`Well I should.
`Then who’s on first?
`Yes?
`I mean the fellow’s name.
`Who.
`The guy on first.
`Who.
`The first baseman.
`Who.
`The guy playing . . .
`
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`
`Jason is really into it. Jessica is giggling a bit. But you
`can imagine him going into it all alone on a Saturday
`night.
`
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`TYRONE
`JASON
`
`Who is on first.
`I’m askin[’] you who’s on first.
`That’s the man’s name.
`That’s whose name.
`Yes.
`Well go ahead and tell me.
`That’s it.
`That’s who?
`Yes.
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`15
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`When Jason somewhat bashfully concludes the “Who” part of the Routine,
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`Jessica compliments him by saying, “That’s really good,” and asks, “Did you
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`come up with that all by yourself[?]” Suppl. App’x 21. When Jason answers,
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`“Yes,” the audience laughs at what it recognizes as a lie. Id.; see Am. Compl.
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`¶ 64. The answer, however, triggers a different response from the puppet,
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`which, seemingly of its own volition, calls Jason a “Liar,” and states that the
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`comic exchange they just performed is “a famous routine from the [F]ifties.”
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`Suppl. App’x 21. Jason corrects Tyrone, stating that the sketch is from the
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`“Forties.” Id. Tyrone then insults Jessica, telling her that she would know the
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`Routine’s origin if she “weren’t so stupid.” Id. Jason and Jessica each order
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`Jason reaches a pause in the routine and looks out at her.
`He becomes aware of what he’s doing.
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`JESSICA
`JASON
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`What are you doing[?] Don’t stop.
`I . . .
`
`He gets red.
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`JESSICA
`JASON
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`What?
`I can’t remember anymore.
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`
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`Suppl. App’x 17–21 (emphases added).
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`16
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`
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`Tyrone to “shut up” to no effect. Id. at 22. Instead, as the scene continues,
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`Tyrone vulgarly divulges Jason’s physical desire for Jessica. Only after a
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`seeming physical struggle with Tyrone is Jason able to remove the puppet from
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`his hand and thereby end Tyrone’s outburst. Jason tries to apologize to Jessica,
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`but she quickly exits, leaving Jason—in the words of the stage direction—
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`“[d]efeated by what he ca[]n’t defeat.” Id. at 24.
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`The scene foreshadows darker and more disturbing exchanges between
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`Jason and the puppet that will occur as the Play proceeds.
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`2.
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`Promotional Materials
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`Plaintiffs allege that, in online promotional materials for the Play,
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`defendants used a “video clip” of Jason and his puppet performing Who’s on
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`First? to “stoke interest” in and sell tickets for the Play. Am. Compl. ¶¶ 69, 89.
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`These promotional materials are not part of the court record.
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`D. District Court Proceedings
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`
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`On June 4, 2015, plaintiffs filed this action in the Southern District of New
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`York, claiming both federal and common
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`law copyright
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`infringement.
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`Defendants promptly moved to dismiss, arguing, inter alia, that (1) plaintiffs did
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`17
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`not hold a valid copyright; (2) the Routine was in the public domain; and
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`(3) Hand to God’s incorporation of the Routine was sufficiently transformative to
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`qualify as a permissible fair use, not prohibited infringement.
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`On December 17, 2015, the district court granted defendants’ motion to
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`dismiss. It declined to do so on either of the first two grounds argued by
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`defendants, concluding that, at the 12(b)(6) stage, plaintiffs had “sufficiently
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`alleged a continuous chain of title” to the Routine to survive dismissal. TCA
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`Television Corp. v. McCollum, 151 F. Supp. 3d at 431. Instead, the court
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`concluded that dismissal was warranted because defendants’ use of Who’s on
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`First? in Hand to God was “highly transformative” and a non‐infringing fair use.
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`Id. at 434, 437.
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`This appeal followed.
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`II. Discussion
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`A. Dismissal Was Not Properly Based on Fair Use
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`1.
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`Standard of Review
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`
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`We review de novo a judgment of dismissal under Fed. R. Civ. P. 12(b)(6),
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`accepting all factual allegations in the amended complaint and its incorporated
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`18
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`exhibits as true and drawing all reasonable inferences in plaintiffs’ favor. See
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`Concord Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 52 (2d Cir. 2016). The
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`challenged dismissal here is based on the district court’s determination that
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`plaintiffs could not succeed on their copyright infringement claim because the
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`Rule 12(b)(6) record established defendants’ fair use defense as a matter of law.
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`Our review of that decision is necessarily informed by certain basic
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`copyright principles. First, the law affords copyright protection to promote not
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`simply individual interests, but—in the words of the Constitution—“the progress
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`of science and useful arts” for the benefit of society as a whole. U.S. Const. art I,
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`§ 8, cl. 8. As the Supreme Court has explained, copyright protection is based on
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`the “economic philosophy . . . that encouragement of individual effort by
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`personal gain is the best way to advance public welfare.” Mazer v. Stein, 347
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`U.S. 201, 219 (1954). In short, the “monopoly created by copyright . . . rewards
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`the individual author,” but only “in order to benefit the public.” Harper & Row
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`Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985) (internal quotation
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`marks omitted); see Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The sole
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`interest of the United States and the primary object in conferring the monopoly
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`lie in the general benefits derived by the public from the labors of authors.”).
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`Second, and consistent with this public purpose, the law has long
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`recognized that “some opportunity for fair use of copyrighted materials” is
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`necessary to promote progress in science and art. Campbell v. Acuff‐Rose Music,
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`Inc., 510 U.S. 569, 575 (1994); Iowa State Univ. Research Found., Inc. v. Am.
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`Broad. Cos., 621 F.2d 57, 60 (2d Cir. 1980) (stating that fair use doctrine “permits
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`courts to avoid rigid application of the copyright statute when, on occasion, it
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`would stifle the very creativity which that law is designed to foster”). The
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`doctrine of fair use, derived from common law, is now codified in the Copyright
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`Act of 1976, Pub. L. No. 94‐553, 90 Stat. 2541. See 17 U.S.C. § 107. That
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`codification does not so much define “fair use” as provide a non‐exhaustive list
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`of factors to guide courts’ fair use determinations. This affords the doctrine a
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`certain “malleability” that can challenge judicial application. 4 Melville B.
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`Nimmer & David Nimmer, Nimmer on Copyright (hereinafter “Nimmer”)
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`§ 13.05, at 13‐156 (Matthew Bender, rev. ed., 2016).
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`Courts most frequently address a proffered fair use defense at summary
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`judgment. See, e.g., Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006) (explaining
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`that court may resolve fair use question at summary judgment if there are no
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`genuine issues of fact); see also Harper & Row Publishers, Inc. v. Nation Enters.,
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`471 U.S. at 560 (stating that appeals court may decide fair use where “district
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`court has found facts sufficient to evaluate each of the statutory factors”).
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`Nevertheless, this court has acknowledged the possibility of fair use being so
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`clearly established by a complaint as to support dismissal of a copyright
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`infringement claim. See Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013)
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`(granting defendant partial summary
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`judgment on fair use and citing
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`approvingly to Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th
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`Cir. 2012) (rejecting argument that fair use could not be decided on motion to
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`dismiss)).
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`On de novo review here, we conclude that defendants’ entitlement to a fair
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`use defense was not so clearly established on the face of the amended complaint
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`and its incorporated exhibits as to support dismissal.
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`2.
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`The Statutory Framework for Analyzing Fair Use
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`In the preamble to 17 U.S.C. § 107, Congress states that “the fair use of a
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`copyrighted work . . . for purposes such as criticism, comment, news reporting,
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`teaching (including multiple copies for classroom use), scholarship, or research is
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`not an infringement of copyright.” As the words “such as” indicate, the listing is
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`“illustrative and not limitative.” 17 U.S.C. § 101; see Harper & Row Publishers,
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`Inc. v. Nation Enters., 471 U.S. at 561. Four nonexclusive factors—incorporating
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`common law traditions—are properly considered in “determining whether the
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`use made of a work in any particular case is a fair use.” 17 U.S.C. § 107. These
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`statutory factors are as follows:
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`(1) the purpose and character of the use, including
`whether such use is of a commercial nature or is for
`nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in
`relation to the copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or
`value of the copyrighted work.
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`Id.; see generally Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (Story,
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`J.) (explaining that common law courts “deciding questions of this sort” should
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`“look to the nature and objects of the selections made, the quantity and value of
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`the materials used, and the degree in which the use may prejudice the sale, or
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`diminish the profits, or supersede the objects, of the original work”).
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`In reviewing the challenged determination of fair use in this case, we
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`necessarily discuss these factors individually, at the same time that we heed the
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`Supreme Court’s instruction that the factors must be viewed collectively, with
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`their results “weighed together, in light of the purposes of copyright.”
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`Campbell v. Acuff‐Rose Music, Inc., 510 U.S. at 578.
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`a.
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`Purpose and Character of the Use
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`(1)
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`Transformative Use
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`The first statutory fair use factor considers the purpose and character of
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`the secondary use. In this regard, the uses identified by Congress in the
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`preamble to § 107—criticism, comment, news reporting, teaching, scholarship,
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`and research—might be deemed “most appropriate” for a purpose or character
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`finding indicative of fair use. Nimmer § 13.05[A][1][a], at 13‐162; see Authors
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`Guild v. Google, Inc., 804 F.3d 202, 215 (2d Cir. 2015) (noting that providing
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`commentary or criticism on another’s work is “[a]mong the best recognized
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`justifications for copying”).
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`The challenged use here does not appear to fit within any of these
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`statutory categories. Nevertheless, the district court concluded that defendants’
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`use was “transformative,” indeed, so “highly transformative” as to be
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`“determinative” of fair use. TCA Television Corp. v. McCollum, 151 F. Supp. 3d
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`at 434–35. The district court explained that by having a single character perform
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`the Routine, the Play’s authors were able to contrast “Jason’s seemingly soft‐
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`spoken personality and the actual outrageousness of his inner nature, which he
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`expresses through the sock puppet.” Id. at 436. This contrast was “a darkly
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`comedic critique of the social norms governing a small town in the Bible Belt.”
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`Id. This reasoning is flawed in that what it identifies are the general artistic and
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`critical purpose and character of the Play. The district court did not explain how
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`defendants’ extensive copying of a famous comedy routine was necessary to this
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`purpose, much less how the character of the Routine was transformed by
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`defendants’ use.
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`The Supreme Court has stated that “the goal of copyright . . . is generally
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`furthered by the creation of transformative works.” Campbell v. Acuff‐Rose
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`Music, Inc., 510 U.S. at 579.9 But how does a court decide “whether and to what
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`extent the new work is ‘transformative’”? Id. Campbell instructs that a court
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`properly considers “whether the new work merely supersedes the objects of the
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`original creation, or instead adds something new, with a further