The U.S. Court of Appeals for the Second Circuit, in a unanimous 3-0 ruling, decided that a Broadway play’s verbatim performance of a full minute from the iconic Abbott and Costello routine, “Who’s on First,” in a scene between an introverted, small-town boy and his demonic sock puppet, was not transformative or otherwise fair use as a matter of copyright law. The Second Circuit’s opinion clarifies that simply placing an unaltered original copyrighted work “in a sharply different context from its original authors” does not warrant a protectable “transformative use.” This opinion will shape the meaning and scope of what has become the “transformative use” factor of the four-factor fair use defense to copyright infringement.

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