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Second Circuit affirms denial of summary judgment on defendant’s counterclaim seeking declaration that plaintiff’s theatrical script parodying 1991 motion picture “Point Break” was not entitled to copyright protection.

Plaintiff Jaime Keeling is the author and owner of registered copyrights in the script for “Point Break LIVE!”, a stage play parodying the 1991 Keanu Reeves-Patrick Swayze film “Point Break.” Keeling’s copyrights are for additions and modifications to “Point Break.” She does not hold a copyright or license for the original motion picture and did not obtain permission from the copyright holder of “Point Break” before registering her own copyrights in her parody. In 2007, Keeling negotiated a production agreement with defendant Eve Hars, the owner of New Rock Theatre Productions, to stage a two-month run of “Point Break LIVE!” Although the run was successful, Hars chose not to renew the agreement. But, claiming that Keeling had no copyrights in and to her script, Hars continued to stage the production without Keeling’s permission and without compensating her.

In 2010, Keeling sued Hars and others, asserting copyright infringement and other claims for the continued staging of “Point Break LIVE!” Hars counterclaimed for a declaration that Keeling’s copyright registration in the script was invalid and moved for summary judgment. The district court denied the motion, ruling that a parody making “fair use” of another copyrighted work may contain sufficient originality to merit copyright protection itself. The case proceeded to trial and a jury found in Keeling’s favor, awarding her $250,000. Hars appealed to the Second Circuit, challenging the denial of her summary judgment motion and the district court’s jury instructions on originality and fair use.

Hars argued that the district court improperly denied her summary judgment motion because, as an unauthorized derivative work, Keeling’s script categorically was not entitled to independent copyright protection. Hars also contended that Keeling’s original contributions to the work consisted solely of non-copyrightable individual elements (i.e., stage directions and theatrical devices) that could not support a copyright. The Second Circuit agreed with the district court that when a derivative work’s unauthorized use of preexisting material constitutes fair use and the derivative work contains sufficient originality, its author may claim copyright protection for her original creative contributions. Congress expressly contemplated the extension of copyright protection in such instances when it enshrined fair use in the Copyright Act in 1976, noted the Second Circuit. As to Hars’ second argument, the panel held that the Copyright Act, in protecting “compilations,” entitles protection to creative choices in selecting and arranging individually non-copyrightable elements. Because Keeling’s arrangement of stage directions and theatrical devices within her script contained some “minimal degree” of creativity and created a “new parodic meaning,” it was entitled to copyright protection, it concluded.

Hars challenged the district court’s jury instructions on two grounds. First, she claimed that the lower court failed to provide a separate instruction that originality was a constitutional requirement for Keeling to be entitled to copyright protection. Second, Hars argued the district court failed to enumerate the four statutory fair use factors. Reviewing for plain error (in light of Hars’ failure to challenge the instructions at trial), the Second Circuit rejected both arguments.

According to the panel, although the district court collapsed aspects of fair use and originality into a single set of instructions, it sufficiently instructed the jury on the originality requirement in describing how a “new work” parodying or transforming the original work would not constitute infringement. The Second Circuit further noted that the district court’s instruction on fair use was in line with the “hierarchy of significance” of the four fair use factors. The district court had emphasized the question of transformative use under the first statutory factor, mentioned the third factor briefly in stating that the amount of script taken from the original cannot go beyond the needs of the parody, and declined to mention the second and fourth factors (the nature of, and impact on the market for, the original work) at all. The Second Circuit found that the district court’s rationale of putting “a little more content on the discussion” of fair use, which the factors alone lacked, was understandable, if not advisable. In any event, the panel held, Hars presented no evidence that would tend to support a different verdict on fair use, even if the district court had covered the four factors in detail.