Thursday, May 12, 2016

Copyright in Film Parody: Brandishing Fair Use As A Sword, Second Circuit Finds Improv Version Of Point Break Copyrightable

In Keeling v. Hars, --- F.3d --- (2d Cir. October 30, 2015), the Second Circuit considered the question of whether the author of a live improvisational parody of the 1991 film Point Break could copyright her parody. 

A parody is a "derivative work" under the Copyright Act.   Section 106 of the Copyright Act guarantees the author of a copyrighted work the right to prepare derivative works. 17 U.S.C. 106.  Typically, unauthorized derivative works are afforded no copyright protection because such works unlawfully infringe the copyright owner's exclusive rights.

However, parody is different.  Under Section 107 of the Copyright Act, fair use of a copyrighted work in a parody "is not an infringement of copyright" and is thus lawful under the fair use doctrine.  The determination of whether a use of a copyrighted work in a parody is "fair" requires a separate analysis.

Keeling came up in an odd procedural context.   A theater owner who had licensed the parody Point Break Live decided that she did not wish to honor her contract to pay the playwright because the theater owner believed that the playwright did not own the copyright to the work.   Keeling, the playwright then registered her copyright claim and sued the theater owner.

The theater owner argued that the fair use doctrine is only an affirmative defense and cannot be used as a "sword" to vest a work with independent copyright protection.

The Second Circuit rejected this argument, finding that a "close reading" of the Copyright Act "makes plain that an unauthorized but lawful fair use employing preexisting copyrighted material may itself merit copyright protection."..."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 derivative works -- such 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. But Keeling has never sought to do so. Rather, as the District Court correctly held, “Keeling's creative contribution, and thus her copyright, is in the original way in which [she] has selected, coordinated, and arranged the elements of ... her work” to create new parodic meaning.

To read the Second Circuit's full decision in Keeling v. Hars, click here.  Watch the video above on YouTube, it is really, really funny.

Point Break 1991 Film Poster
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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