Court Grants Parodist Right To Own Copyright In Parody
November 12, 2015
by Jerry Glover
A federal district court has ruled that a person who creates a parody of a copyrighted work can own a separate copyright in the parody even though the parodist did not have permission to create the parody. Keeling v. Hars, 2015 WL 6600571 (2d Cir. 2015 October 30, 2015).
James Keeling, the plaintiff, created a theater parody of the motion picture “Point Break” which starred Keanu Reeves and Patrick Swayze. The parody was entitled “Point Break Live!” The script used the characters, plot and a significant amount of dialogue from the original film. Keeling added jokes, props, exaggerated staging and humorous theatrical devices to turn the film into an interactive theatre experience. For example, the Reeves role was played by a member of the studio audience selected at random who reads his lines from cue cards. The court noted this “technique” lampooned stilted performance in the film.
Other parodic elements Keeling included in the play were the use of squirt guns to simulate massive ocean waves that appeared in the film and the creation of characters who were part of the “Point Break” film crew (a director, cinematographer and production assistants) who appeared in the play.
The play was licensed to New Rock Theater Productions, owned by the defendant Eve Hars. After the show played there for about three months, Hars determined that Keeling did not own the rights to the parody since it was based on a film and Keeling owned no portion of the copyright in that film. After the initial run, Hars continued to produce the parody without paying Keeling. Keeling registered the parody in the U.S. Copyright Office and sued Hars for infringement.
A trial court jury ruled for Keeling and Hars appealed. Note that the owner of the copyright in the motion picture was not a party to this lawsuit.
The appeals court stated there were two issues to decide: (1) whether an authorized parody which uses copyrighted material as part of that parody can be separately registered in the Copyright Office and (2) whether Keeling’s contributions to the work (which consisted of, concededly, non-copyrightable elements) could support a separate copyright registration.
The court noted that the Copyright Act provides copyright owners with certain exclusive rights including the right to create or authorize others to create a derivative work based on the original work. An example of a derivative work: a film version of a novel. The film is “derived” from the novel and contains copyrightable elements of the original in the derivative work. If no such permission is granted, anyone who makes an unauthorized derivative work infringes on that owner’s exclusive rights and, thus, can be liable for copyright infringement.
But Keeling argued that his use of certain material from the “Point Break” film was a fair use of those copyrighted elements and, therefore, there was no infringement. The courts have long held that a parody is an arm of the fair use defense. If a court finds that a derivative work is a legitimate parody (i.e., comments on the work from which it is derived), then the use of copyrighted materials is a fair use and not unlawful.
Hars did not dispute that Keeling’s use of material from the motion picture was a fair use. She argued, however, that a derivative work cannot receive independent copyright protection even if it makes fair use of its source material. So although Keeling could use the fair use defense as a “shield” against a claim of infringement, she argued that Keeling could not use that defense as a “sword” to secure independent copyright protection that would then allow Keeling to claim Hars infringed on the parody by continuing to perform not without Keeling’s permission..
Derivative works are entitled to independent copyright protection if the original copyrighted materials were used lawfully. And if those earlier materials are used lawfully in the derivative work there is nothing in the Copyright Act that prohibits the derivative work from being independently copyrighted. But even if it is agreed that Keeling’s use of material from the film was a fair use, the derivative work must still be original before it can receive copyright protection. As a practical matter, the appellate court noted that if original, derivative works making fair use of material could not be separately copyrighted (even if unauthorized), people would be dissuaded from creating them altogether, an outcome contrary to the Copyright Act’s primary purpose of encouraging progress in the arts.
On to the second issue: were the “new” elements Keeling added to the theater production copyrightable? Hars argued that Keeling’s only additions consisted of non-copyrightable stage directions and theatrical devices. The appeals court disagreed.
The court noted that even though individual elements may not be separately copyrightable, the collection, selection and arrangement of those elements may be sufficiently creative to be “original.” The court pointed to a long line of cases noting that the assembly of raw data or facts (which are individually not copyrightable) into a compilation or arrangement often possess that minimal degree of originality to secure copyright protection. The court added that Keeling’s collection of elements—use of an audience member, reliance on cue cards, use of squirt guns—was a protectable selection, coordinating and arrangement of elements that meet the originality criterion.