USDC S.D. New York, May 17, 2011  

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  • Court denies defendants’ motion to dismiss plaintiff’s claim for copyright infringement, holding that plaintiff may obtain a copyright in her work, a parody, without permission of the copyright holders of the original work.

Plaintiff Jaime Keeling is the author and owner of registered copyrights in the script for “Point Break LIVE!”, a stage play that is a parody of “Point Break,” a popular motion picture released in 1991. Plaintiff’s copyrights are for additions and modifications she made to “Point Break” for the purposes of parodying it in her script. Plaintiff does not have a copyright or license with regard to the original motion picture, nor did she obtain permission from the copyright holder of “Point Break” before registering her own copyrights in her parody.

Plaintiff negotiated a production agreement with defendant Eve Hars, the owner of defendant New Rock Theatre Productions, to stage a two-month run of performances of “Point Break LIVE!” at the theatre. Although the run was successful, defendants chose not to renew the agreement. Instead, allegedly at the instigation of defendant Ethan Garber, an investor in New Rock, defendants repudiated the agreement, claiming that plaintiff had no rights to her script. Defendants continued to stage the play in Los Angeles and elsewhere without plaintiff’s permission and without compensating her for the use of her script.

Defendant moved to dismiss plaintiff’s complaint for copyright infringement, arguing that Keeling’s parody, as a derivative work, cannot be protected by copyright without the permission of the original copyright owner. The court denied the motion, finding that defendants’ argument had “no basis in law.”

According to the court, a parody of an original work falls within the fair use doctrine and, so long as the creator of the derivative work stays within the bounds of fair use and adds sufficient originality, she may also obtain a copyright. The copyright for a derivative work is more limited than that for an original work, however, extending only to the material contributed by the author of the derivative work, as distinguished from the original material used in the work. Although an original creator may create a derivative of her own original work, “nowhere is it stated that the creator of a derivative work cannot copyright the new portions of that derivative work without permission from the creator of the original work.”

Citing a short list of cases, the court noted that creators of derivative works often register their own copyrights – without permission from the holder of the original copyright – and then sue those who create later derivative works from the same original but whose later derivative works are alleged to infringe on the earlier derivative work because they are too similar. “Nowhere in these cases it is ever questioned whether the plaintiff--creator of the earlier derivative work--had obtained permission from the original copyright holder before registering her own copyright in the derivative work.”

The court found the cases defendants cited in support of their argument that derivative works cannot receive copyright protection without permission of the original work’s copyright holder “uniformly unhelpful to the question at hand.” Not only did none of the cited cases so hold, but “none . . . even involves the issue of the creator of a derivative work attempting to enforce her copyright. Instead, they all involve claims by original copyright holders alleging that the derivative work at issue is not fair use.”