Keeling v. Hars

The U.S. Court of Appeals for the Second Circuit affirmed a district court in a rare instance where a playwright’s derivative work—a parody—fell within the fair use doctrine and acquired sufficient originality to warrant independent copyright protections. Keeling v. Hars, Case No. 13-694 (2nd Cir., Oct. 30, 2015) (Cabranes, J.).

Plaintiff Jaime Keeling wrote a script for a stage play called Point Break LIVE! The play was a parody of the 1991 film Point Break, starring Keanu Reeves and Patrick Swayze. Although Ms. Keeling incorporated the characters, plot, and dialogue of the film, she added jokes, props, exaggerated staging and humorous theatrical devices to the parody play. In particular, the script called for a member of the audience to read Keanu Reeves’s character lines from a cue card to mock the actor’s “reputedly stilted performance.”

Beginning in 2007, New Rock Theater Productions, LLC (New Rock) put on the Point Break LIVE! parody. The show’s first two months were staged in accordance with a production agreement between New Rock and Ms. Keeling. Thereafter, New Rock principal Eve Hars conferred with an entertainment attorney who advised her that Ms. Keeling did not have a license or other permissions from the original motion picture. Believing that Ms. Keeling did not own any rights in the parody play, Ms. Hars sought to produce the play without making further payments to Ms. Keeling. For four years, New Rock staged the Point Break LIVE! performance without payment to, or authorization from, Ms. Keeling. Meanwhile, Ms. Keeling registered a copyright in Point Break LIVE! script and filed suit for claims that included copyright infringement.

New Rock and Ms. Hars moved for summary judgment, arguing that the copyright registration for the Point Break LIVE! script was invalid because it was an unauthorized derivative work. The district court denied the motion based on the possibility that the script was lawful under the fair use doctrine. The case proceeded to trial. After being instructed on the fair use doctrine, a jury found New Rock had infringed of Ms. Keeling’s copyright in the parody script and awarded damages. Hars appealed.

The 2nd Circuit rejected Ms. Hars’ argument that the script was not within the bounds of fair use, explaining that if a “creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality; she may claim protection under the Copyright Act.” The 2nd Circuit clarified that Ms. Keeling’s parody was lawful under the doctrine of fair use and could be copyrighted, noting that fair use does not itself give the work copyright protection, but the “originality of the derivative work” can be sufficiently transformative (i.e., can create a “new parodic meaning”) to merit its own protection. Indeed, the appeals court concluded that “[w]ithout any possibility of copyright protection against infringement for her original fair-use parody, playwrights like Keeling might be dissuaded from creating at all.”

Practice Note: Typically in copyright infringement suits, the derivative work author is the defendant. Here, Ms. Keeling was the plaintiff, whose unauthorized use of a well-known motion picture led to the creation of a new and original stage work. This decision may have implications for artists whose work intentionally misappropriates copyrighted materials, such as remix and mashup artists.