From the New York Post:
A federal appeals court Tuesday called out a lower-court judge for tossing a copyright infringement lawsuit over the 80-year-old sketch “Who’s On First?” — but upheld the dismissal anyway.
A three-judge panel from the Second Circuit Court of Appeals said Manhattan federal court Judge George Daniels erred in throwing out the lawsuit brought by the kin of Abbott & Costello, who claimed they owned the copyright to the famous comedy routine. Last year, they sued the producers of dark comedy play “Hand to God” for allegedly illegally using the rapid-fire sketch in Act 1 – but Daniels said the reproduction constituted fair use.
In a 62-page ruling, the appeals judges disagreed with Daniels but nonetheless dismissed the suit in finding that the heirs of William “Bud” Abbott and Lou Costello didn’t prove they had a valid copyright over the work.
Jonathan Reichman, an attorney for the Abbott and Costello families, said the judges’ decision came “out of left field” and plans to ask them to reconsider. “We’re obviously gratified that the court agreed with us on the fair use issue,” said Jonathan Reichman, an attorney for Abbott and Costello’s family. “But we were surprised and disappointed with their decision in respect to the copyright ownership and status because it was not the focus of our appeal.”
“Hand to God” depicted an awkward Texas teen and his foul-mouthed, alter-ego sock puppet. It ended its Broadway run last January and had been nominated for numerous Tony Awards. About 15 minutes into the play, the main character Jason uses his puppet named “Tyrone” to impress a date by reenacting “Who’s on First?”
Producers argued that the sketch fell into public domain.That 1938 date is actually the first time Abbott and Costello performed the routine on radio (on The Kate Smith Show, to be precise). The pair had begun doing it in burlesque and vaudeville shortly after teaming up in 1936.
Abbott & Costello first performed the silly famous routine — a humorous exchange about baseball players named “Who,” “What” and “I Don’t Know” — on the radio in 1938.
Wikipedia cites several predecsessors for the sketch:
"Who's on First?" is descended from turn-of-the-century burlesque sketches that used plays on words and names. Examples are "The Baker Scene" (the shop is located on Watt Street) and "Who Dyed" (the owner is named "Who"). In the 1930 movie Cracked Nuts, comedians Bert Wheeler and Robert Woolsey examine a map of a mythical kingdom with dialogue like this: "What is next to Which." "What is the name of the town next to Which?" "Yes." In English music halls (England's equivalent of vaudeville theatres), comedian Will Hay performed a routine in the early 1930s (and possibly earlier) as a schoolmaster interviewing a schoolboy named Howe who came from Ware but now lives in Wye. By the early 1930s, a "Baseball Routine" had become a standard bit for burlesque comics across the United States. Abbott's wife recalled him performing the routine with another comedian before teaming with CostelloBud Abbott himself admitted it was based on a previous routine called "Who's The Boss". A performance of "Who's The Boss", from a 1946 episode of the radio series It Pays To Be Ignorant, can be heard at this page.
After their national exposure on The Kate Smith Show, Abbott and Costello's rise was swift, thanks in part to "Who's On First". Within two years they were in the movies, doing an edited version of their most famous routine in the Universal musical A Night In The Tropics. In 1945 they did the complete version as the stars of The Naughty Nineties:
Around this time they also did the routine for this newsreel intended for WWII military personnel. I include this (colorized) version because it features the uncensored punch line:
By the '70s "Who's On First" was so famous it was reworked by the L.A. radio team The Credibility Gap (Harry Shearer, Michael McKean, and David L. Lander), using the names of rock groups instead of ballplayers. The last line is an amusing tip of the hat to the previous sketch.
This version was in turn reworked by SCTV (forgive the awful picture quality):
If you're interested in exploring humor more thoroughly, check out my book What's So Funny? Theories Of Comedy, available at Amazon.