In the hit 1991 film Point Break the FBI sends young agent Johnny Utah (Keanu Reeves) undercover at the beach to mix with surfers (including Bohdi, Patrick Swayze) that they believe could be members of a gang that robs banks wearing masks of ex-US presidents.
In the successful theatre show Point Break Live! an audience member is chosen by a "fairly ridiculous audition process" to play the role of Johnny Utah in a parody of the film, reading all the lines off cue cards – a method that "really catches the essential rawness of Keanu Reeves’ acting style". All of which makes for "a night of live theater that rivals anything by Samuel Beckett in terms of pure excitement".
But if you want to see Point Break Live! you’d better hurry or you might be waiting longer than Vladimir and Estragon waited for Godot. It’s now the subject of a copyright dispute that might just shut it down.
Point Break Live! uses the Point Break script plus additions and modifications made by Jaime Keeling. Keeling entered an agreement with Eve Hars, the owner of New Rock Theater Productions LLC, to stage a two-month run of the show in LA. Hars did not renew the production agreement after that run – but continued to stage the play in LA and elsewhere without Keeling’s permission and without compensating her. Gnarly.
As best we can tell, Keeling herself never got permission from the copyright owner of the film script. That was a mondo mistake for two reasons. First, New Rock got a licence instead. Second, it means Keeling’s script itself might be an infringement of copyright.
Notwithstanding this invidious tactical position, it seems Keeling’s taken a leaf out of Bohdi’s book – why be a servant to the law when you can be its master? And Kahuna is smiling on her so far. US District Court Judge Thomas P Griesa has refused to summarily dismiss her case against New Rock, ruling that Keeling’s parody may be protected by copyright despite itself being a derivative of the original script. This is despite a memorandum of law from New Rock that could be aptly summarised in the words of Agent Ben Harp from Point Break: "Your approach to this whole damn case bothers me! And yes! You bother me!".
If Keeling ever staged the play in Australia she might have difficulties. Australian law provides that there is copyright in a derivative work, but that does not derogate from copyright in the original – so it may well be an infringement to use substantial parts of the original in a derivative work of satire or parody. Australian law has a brand new (2006) exception to infringement for fair dealing for the purposes of parody or satire. There is no authority yet on how much a parodist or satirist can copy of the original work before the dealing is no longer "fair".
The basic principles applying to copyright in parody and satire are broadly similar in US and Australian law but US courts have developed a more permissive approach, informed perhaps by rights to freedom of speech.
However, if Keeling has taken whole slabs of Point Break’s script then she might still be on shaky ground whichever jurisdiction she’s in. She may need to go tandem with the owner of copyright in the film script. She also needs to keep the current cast on side – or find a new one (which has happened before). Looks like Point Blank Live! is heading quickly into a hundred year storm. Bummer, dude.