United States Court of Appeals for the Second Circuit ______
Case 16-134, Document 65-1, 10/11/2016, 1880448, Page1 of 62 16‐134‐cv TCA Television Corp. v. McCollum In the United States Court of Appeals For the Second Circuit ________________ August Term, 2015 (Argued: June 23, 2016 Decided: October 11, 2016) Docket No. 16‐134‐cv ________________ TCA TELEVISION CORP., HI NEIGHBOR, DIANA ABBOTT COLTON, Plaintiffs‐Appellants, —v.— KEVIN MCCOLLUM, ROBERT ASKINS, DOES, ABC COMPANIES, 1‐10, HAND TO GOD LLC, THE ENSEMBLE STUDIO THEATER, INC., MANHATTAN CLASS COMPANY, INC., 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., Defendants. ________________ 1 Case 16-134, Document 65-1, 10/11/2016, 1880448, Page2 of 62 Before: JACOBS, CALABRESI, RAGGI, Circuit Judges. ________________ On appeal from a judgment entered in the Southern District of New York (Daniels, J.) dismissing an action for copyright infringement by the heirs of William “Bud” Abbott and Lou Costello, plaintiffs challenge the district court’s determination, made as a matter of law on a Rule 12(b)(6) motion, that defendants’ verbatim use of a portion of Abbott and Costello’s iconic comedy routine, Who’s on First?, in the recent Broadway play Hand to God, qualified as a non‐infringing fair use. Defendants defend the district court’s fair use ruling, and further argue that dismissal is supported, in any event, by plaintiffs’ failure to plead a valid copyright interest. We here conclude that defendants’ appropriation of Who’s on First? was not a fair use, but, nevertheless, affirm the challenged judgment on defendants’ alternative invalidity ground.
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