"Amos 'n' Andy," pulled from the CBS schedule 25 years ago after protests about its portrayal of blacks, could be heading for Broadway thanks to a decision by a federal appeals court.
The 2nd U.S. Circuit Court of Appeals, overturning a lower court, ruled that CBS did not have blanket trademark rights to the show and its characters. And a playwright who brought the action five years ago said Wednesday he still has plans for his proposed musical based on "Amos 'n' Andy.""I'm going ahead," said Stephen Silverman, author of the musical, "Fresh Air Taxi." "I've rewritten the script and now I'm looking for a producer."
The ruling allows Silverman or anyone else to use Amos Jones, Andy Brown, Algonquin J. Calhoun, the Kingfish and any other characters connected with the show before 1948, as well as such phrases from the show as "Holy Mack'rel," "Ain't dat sumpin" and "Scuse me for protrudin."
George Schweitzer, senior vice-president of communications for CBS, said the network was "reviewing the option" of taking the case to the U.S. Supreme Court.
The comedy series featuring the black characters was introduced on radio in the 1920s, with the roles played by whites.
The show came to television on CBS in 1951 and were played by blacks. CBS had purchased all the rights to the characters in 1948 from Freeman Gosden and Charles Correll, the white actors who created the characters on radio.
Silverman, a former newspaper columnist who wrote the recent "The Fox that Got Away" and an upcoming biography on director David Lean, conceived of the musical in 1981.
The name was based on the cab company in the show owned by the title characters.
Silverman contends he tried to contact CBS about use of the characters but was continually rebuffed and ignored.
He argued that CBS had abandoned its trademarks by not using the characters since the show was pulled off the air in 1964 due to protests about the portrayal of blacks.
The litigation began in 1984. In August 1987, District Judge Gerard Goettel ruled that although CBS had not used the properties or revealed plans for any use, it had shown that it wanted to hold the option.
But the three-judge appeals panel said that at the time the issue came to court, the Amos 'n' Andy trademarks had not been used for 21 years.
Despite the reasonable explanation CBS gave for not using "Amos 'n' Andy," the judges found that the trademark cannot be protected if use was discontinued for more than 20 years and there were "no plans to use or permit its use in the foreseeable future. A bare assertion of possible future use is not enough."
However, the judges upheld the network's rights to all scripts produced after 1948 and said no determination on infringement could be made until the play is produced.
Silverman may use aspects of the "Amos 'n' Andy" materials "including names, stories, and characters to the extent that such elements of expression are contained . . . in the pre-1948 radio scripts, which are in the public domain," the judges said.
Court papers showed commitments topping $500,000, including enlisting jazz star Jabbo Smith to write the music and Vernal Bagheris, the director of "One Mo' Time," to direct.