On October 30, 2015 the Second Circuit held that an unauthorized parody that makes “fair use” of its source material is eligible for copyright protection and that copyright protection may extend to a work that exhibits the sufficient minimal degree of originality in selecting, coordinating, and arranging otherwise un-protectable underlying elements.

Plaintiff Jaime Keeling (“Keeling”) is the author of Point Break Live!, a parody stage adaptation of the 1991 action movie Point Break, starring Keanu Reeves and Patrick Swayze. Keeling’s parody parallels the characters and plot elements from Point Break and relies almost exclusively on selected dialogue from the screenplay. Keeling also added jokes, props, exaggerated staging and humorous theatrical devices to transform the dramatic plot and dialogue of the film into an interactive theatre experience. Keeling does not have a copyright or license with respect to the Point Break motion picture.  Defendant Eve Hars (“Hars”) owns production company New Rock Theater Productions, LLC. (“New Rock”) In 2007, Keeling executed a production agreement with Hars, pursuant to which New Rock would stage a two-month production run of Point Break Live! from October through December 2007. After conferring with an attorney, Hars came to believe that Keeling did not lawfully own any rights to the Point Break Live! parody. After the initial two-month run, Hars sought to renegotiate the agreement and to continue to produce the parody without further payment to Keeling. Keeling refused and registered a copyright in the parody that became effective in January 2008.

In December 2010, Keeling sued Hars, New Rock and one of New Rock’s investors for copyright infringement, breach of contract and tortious interference with contract. Defendants counterclaimed to declare that Keeling’s copyright registration was invalid. The district court denied defendants’ motion for summary judgment, holding that a parody that makes “fair use” of another copyrighted work may contain sufficient originality to merit copyright protection itself. The district court also rejected the argument that a script heavily reliant on theatrical devices could not lawfully constitute original creative expression deserving of copyright protection.  In December 2012, after a five day jury trial, the jury found that (1): Keeling’s use of material from Point Break was fair use by way of parody; (2) Keeling was the sole owner of the copyright to Point Break Live!; and (3) the Defendants infringed Keeling’s copyright.

The Second Circuit affirmed. Hars argued that an unauthorized derivative work categorically could not receive independent copyright protection, regardless of whether it makes fair use of its source material. Hars conceded that Keeling could use the “fair use” doctrine as a “shield” against a claim of copyright infringement, but argued that the doctrine could not be used as a “sword” to vest a work with independent copyright protection against third-party infringement. The Second Circuit rejected this argument as being inconsistent with the relevant statutory language. The Copyright Act provides that derivative works are entitled to “independent” copyright protection, separate from any copyright in the preexisting material. 17 U.S.C. § 103(b). Copyright protection expressly may extend to derivative works “employing preexisting material in which copyright subsists,” but copyright protection does not extend to any part of the work in which such material has been used unlawfully.  If, however, a work employs preexisting copyright material lawfully – as in the case of a “fair use” – nothing in the statute prohibits the extension of the “independent” copyright protection promised by § 103. The Second Circuit’s statutory interpretation was supported by the legislative history of the Copyright Act, which expressly stated: “the unauthorized reproduction of a work might be ‘lawful’ under the doctrine of fair use…and if so the work incorporating it could be copyrighted.”

The Court also rejected Hars’ argument that Keeling’s original contributions to the Point Break Live! were insufficient to warrant copyright protection because they consisted entirely of non-copyrightable stage directions and theatrical devices. The Court explained that copyright law protects not only the individual elements themselves, but also the creative choices made in selecting and arranging even uncopyrightable elements.  In addition, the Copyright Act explicitly protects “compilations” so long as the compilation itself possesses some minimal degree of creativity. Although Keeling could not copyright commonly used individual stage directions and theatrical services (e.g. the reliance on cue cards or the use of squirt guns), Keeling’s contribution – and thus the basis for copyright protection – was in the original way in which she selected, coordinated, and arranged the elements of her work to create new parodic meaning.

Finally, the Court held that the jury instructions did not constitute plain error. First, Hars argued that the district court failed to explain to the jury that originality is required for copyright protection and suggested that a finding of fair use would automatically entitle Point Break Live! to copyright protection.  Although the district court did not offer a discrete, explicit instruction of the requirement of originality, the charge sufficiently instructed the jury on the requirement of originality by explaining the kind of originality required for a fair use parody to merit its own copyright protection.  Additionally, the failure of the court below to explicitly enumerate for the jury all four of the fair use factors listed in 17 U.S.C. § 107 was not plain error. The four factors do not carry equal weight in an evaluation of parody as fair use. The first factor – “the purpose and character of the use” – is at the heart of the inquiry for parody, while the other three factors are much less important. In line with that hierarchy of significance, the district court’s fair use charge emphasized the question of transformative use under the first statutory factor. Although the safer course would have been for the judge to explain the application of all four factors, the error did not affect Hars’ rights. Hars did not present any evidence that would have supported a different verdict on “fair use” even if the district court had covered the four factors in detail.

Parody writers take note: copyright protection is available and advisable.