Silverman v. CBS, Inc.
United States Court of Appeals for the Second Circuit
870 F.2d 40 (1989)
CBS, Inc. (defendant) broadcast the “Amos ‘n’ Andy” show on the radio beginning in 1948 and on television beginning in 1951. The radio show, which first aired in the late 1920s, became one the country’s most popular radio shows. “Amos ‘n’ Andy” were black characters voiced on the radio by Gosden and Correll, who were white. They appeared in blackface in promotional materials for the radio show. The television show was aired until 1953 and on syndication until 1966. Black actors played the characters on television. CBS owned the rights to use the name “Amos ‘n’ Andy” as well as the names and appearance of the “Amos ‘n’ Andy” characters and other distinctive features of the radio and television shows, but it had not aired or licensed any airing of radio or television shows since 1966. In 1981, Silverman (plaintiff) sought a license to use the “Amos ‘n’ Andy” names and characters in a Broadway musical. CBS refused, and Silverman filed suit seeking a declaration that the “Amos ‘n’ Andy” characters, content, and plot were in the public domain and free for anyone to use. He also sought a declaration that CBS had no rights in these programs under trademark law. The trial court held that “Amos ‘n’ Andy” were protected marks and that CBS had not abandoned them. Silverman appealed.
Rule of Law
Holding and Reasoning (Newman, J.)
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