The parody of a copyrighted work is entitled to its own copyright protection, the Second Circuit Court of Appeals has ruled in reviewing a stage production based upon the movie Point Break.
Playwright Jaime Keeling created a stage adaptation of the 1991 Hollywood movie Point Break starring Keanu Reeves and Patrick Swayze called Point Break Live! The PBL parody parallels the characters and plot elements from the movie and almost exclusively uses selected dialogue from the film.
To this material, however, Keeling added jokes, props, exaggerated staging, and humorous theatrical devices intended to transform the plot of the drama into an "irreverent, interactive theatrical experience."
Keeling executed an agreement with a production company owned by Eve Hars to stage a run of PBL in 2007. Hars came to believe that Keeling did not lawfully own any rights to the PBL parody play and continued to produce it after the contract expired and without payment to Keeling for four years, even after Keeling filed for copyright protection in the play.
Asserting claims for copyright infringement, breach of contract, and tortious interference, Keeling filed suit against Hars in 2010. After Hars filed an unsuccessful motion to dismiss and successive unsuccessful motions for summary judgment, the case proceeded to a five-day jury trial in 2012. Ultimately, jurors returned a verdict in Keeling's favor in the amount of $250,000, finding that her use of material from the film was fair use in the way of a parody, that she solely owned the copyright to the parody play, and that the defendants infringed her copyright. Hars appealed.
The Second Circuit Court of Appeals affirmed.
The panel explained that Keeling's contributions to the work—consisting of individually non-copyrightable elements—were sufficient to support a copyright in the parody.
Although the Copyright Act principally offers protection for original works of authorship and authors may retain the exclusive rights to derivative works, if "a work employs preexisting copyrighted material lawfully—as in the case of a 'fair use'—nothing in the statute prohibits the extension of" copyright protection, the panel said.
"It is not the invocation of fair use that provides the work copyright protection, and perhaps thinking so has created some confusion on the part of the defendant," the court said. "It is the originality of the derivative work that makes it protectable, and fair use serves only to render lawful the derivative work, such that it may acquire—as would other lawful derivative works—such protection."
This interpretation of the Copyright Act "is consistent with the animating policy behind the fair use doctrine—to fulfill copyright's core purpose of promoting development in arts and science," the panel added. "Without any possibility of copyright protection against infringement for her original fair-use parody, playwrights like Keeling might be dissuaded from creating at all."
The court rejected Hars' argument that Keeling's original contributions were insufficient to warrant copyright protection because they were simply stage directions and theatrical devices. Recognizing that the Copyright Act explicitly protects compilations, the panel concluded Keeling's efforts exceeded the low creativity threshold to warrant protection.
"To be sure, Hars is correct that Keeling could not copyright the commonly used individual stage directions and theatrical devices—e.g., the concept of drafting an audience member to play the lead, the reliance on cue cards, or the use of squirt guns—which together comprise PBL's jokes," the court wrote. "But Keeling has never sought to do so." Instead, the creative contribution and resulting copyright was the original way in which she selected, coordinated, and arranged the elements of her work to create new parodic meaning, the court said.
A challenge to the district court's jury instructions similarly failed and the panel affirmed the verdict in favor of Keeling.
To read the decision in Keeling v. Hars, click here.
Why it matters: Contrary to typical fair use cases that examine the scope of the fair use defense in light of challenges brought by copyright holders, this case focuses on rights afforded to those who invoke fair use to protect their own works that include borrowed material. The Second Circuit's ruling is noteworthy in defining the scope of protection that one may assert to protect a work that incorporates the work of others.