## Facts

- Freeman F. Gosden and Charles J. Correll created the “Amos ’n’ Andy” radio program in 1928, writing and performing scripts that later became widely popular.
- In 1948, Gosden and Correll assigned their rights in the “Amos ’n’ Andy” scripts and radio programs to CBS, which later produced additional radio programs and a television series.
- Some pre-1948 radio scripts were not protected by copyright (including through nonregistration or failure to maintain protection) and entered the public domain, while other scripts and episodes remained copyrighted.
- By 1966, after public criticism of racial stereotyping, CBS stopped commercially exploiting “Amos ’n’ Andy” and did not market, license, or merchandise the programs or related designations for decades.
- Stephen M. Silverman, a writer/producer, sought to develop a Broadway musical using “Amos ’n’ Andy” characters and elements; CBS refused to license rights.
- Silverman proceeded to write a script drawing on character names, traits, relationships, and other distinctive features associated with the programs, without wholesale verbatim copying of full scripts.
- Silverman sued for declaratory relief that certain pre-1948 material was in the public domain and that CBS could not enforce copyright or trademark rights to stop his project.
- CBS counterclaimed for copyright infringement and Lanham Act § 43(a) violations based on alleged infringement of AMOS ’N’ ANDY and related designations.
- The district court awarded CBS damages and broad injunctive and declaratory relief, and it rejected abandonment of CBS’s trademarks.
- Silverman appealed.

## Issues

1. To what extent may CBS enforce copyright in “Amos ’n’ Andy” characters and story elements when the record contains both public domain scripts and copyrighted works.
2. Whether an injunction may restrain use of elements traceable to public domain scripts, or must be limited to copying of protected expression.
3. Whether CBS abandoned any “Amos ’n’ Andy” trademarks through long-term nonuse and an intent not to resume use.

## Decision

- Affirmed in part: the court agreed that Silverman’s script infringed CBS copyrights to a limited extent by substantially copying protected delineations of characters and their interrelationships embodied in copyrighted episodes.
- Reversed in part: the court held the district court’s relief was overbroad because it effectively extended protection to public domain materials.
- Reversed in part: the court concluded CBS’s “Amos ’n’ Andy” trademarks, if valid, had been abandoned through nonuse.
- Remanded with instructions to narrow the injunction and grant limited declaratory relief clarifying Silverman’s right to use public domain scripts and elements.

## Legal Principles

- Copyright protection cannot be used to remove works from the public domain; injunctions must not restrain use of public domain material.
- Copyright may protect sufficiently delineated characters and their distinctive attributes, but only to the extent those characterizations are expressed in copyrighted works.
- Copyright does not confer a monopoly over general ideas or premises; it protects particular expression and protectable character delineation.
- Where a plaintiff’s work copies protected expression (including protected character treatment and relationships) beyond what is attributable solely to public domain sources, limited infringement may be found.
- Under the Lanham Act, a mark is abandoned when use is discontinued with intent not to resume; extended, deliberate noncommercialization without licensing or merchandising can support abandonment.
- Trademark law cannot be used to block use of abandoned designations, though copyright limits on copying protected expression may still apply.

## Conclusion

The Second Circuit required that relief distinguish between public domain and copyrighted “Amos ’n’ Andy” material, limiting any injunction to protected expression (including protectable character delineations) while allowing use of public domain elements, and it held CBS had abandoned its related trademarks through decades of nonuse.


Silverman v. CBS Inc., 870 F.2d 40 (2d Cir. 1989)