The Second Circuit has issued another important decision in the arena of copyright and fair use.  The ruling clarifies that, where the creator of a parody makes fair use of another work and adds sufficient originality of her own, she may claim copyright protection over the original components of the parody.

The plaintiff in the case, Jaime Keeling, authored Point Break Live!, a theatrical work that adapts and parodies the 1991 film Point Break, starring Keanu Reeves and Patrick Swayze.  Keeling’s play borrows heavily from the characters, plot, and dialogue of the film, but, according to the opinion, “Keeling added jokes, props, exaggerated staging, and humorous theatrical devices to transform the dramatic plot and dialogue of the film into an irreverent, interactive theatrical experience.”  She also added a handful of characters who play fictional versions of the movie’s director, cinematographer, and production assistants.

Defendant Eve Hars and her production company contracted with Keeling for the right to produce a two-month run Point Break Live! in 2007.  But at the end of the run, Hars (apparently with advice of counsel) “came to believe” that Keeling had no intellectual property rights in the parody play at all; Hars therefore allowed the contract with Keeling to expire and continued to produce Point Break Live! for four more years without permission from or further payment to Keeling.  Keeling registered a copyright in Point Break Live! and sued, bringing claims including copyright infringement.  The defendants (Hars, her production company, and an investor in the show) counterclaimed, seeking a declaratory judgment that Keeling’s copyright registration in the parody show was invalid, arguing Point Break Live! was essentially an unauthorized derivative work that could not be protected by copyright.

The federal district court rejected the defendants’ arguments, and ruled that a parody that makes fair use of another work may contain sufficient originality to merit copyright protection itself.  See Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345 (TPG), 2011 WL 6202796 (S.D.N.Y. Dec. 13, 2011) and 2012 WL 5974009 (S.D.N.Y. Nov. 29, 2012).  It held that summary judgment was inappropriate because of factual issues regarding whether Keeling had made fair use of the film and whether her parody contained sufficient originality to warrant copyright protection.  The case went to trial before a jury, which returned a verdict for Keeling to the tune of a quarter of a million dollars, finding that Keeling had made fair use of the film, that Keeling was the sole owner of the copyright to the parody, and that defendants had infringed that copyright.

On appeal to the Second Circuit, a unanimous three-judge panel upheld the district court’s denial of summary judgment and affirmed the jury verdict.  See Keeling v. Hars, No. 13-694-cv (2d Cir. Oct. 30, 2015).  The primary issue on appeal was whether Keeling’s parody was copyrightable.  The court explained that, generally, unauthorized derivative works are not protectable by copyright because they infringe the original author’s exclusive right, under 17 U.S.C. § 106, to make derivative works.

The court also acknowledged the unusual posture of the case; while “fair use” is often invoked as a defense against an infringement claim by the copyright holder of the original work, here, Keeling sought to invoke fair use to establish an affirmative claim for infringement of her own asserted copyright in the parody.  The defendants had argued that fair use should be only a “shield,” not a “sword.”  The court rejected that position, examining statutory language and concluding that, as long as a work employs preexisting copyrighted material lawfully—for example, through fair use—there was no statutory prohibition on extending an independent copyright to that work (although this independent copyright protection would be limited only to the new work’s original content).  In other words, “an unauthorized but lawful fair use” may itself be copyrighted.  The court clarified that fair use does not itself give the work copyright protection; rather, it is “the originality of the derivative work that makes it protectable,” while “fair use serves only to render lawful the derivative work.”  Thus, while Keeling had no rights in the original Point Break movie, her resulting unauthorized parody of it was lawful under the doctrine of fair use and thus copyrightable.  And as a policy matter, the court noted that without copyright protection for fair use parodies, “playwrights like Keeling might be dissuaded from creating at all.”

A related question for the appellate court was whether Keeling had contributed sufficient originality to support a copyright.  Hars had argued that Keeling’s original contributions to the Point Break Live! script consisted essentially of stage directions and theatrical devices, which were uncopyrightable.  The court disagreed, noting that copyright law can protect creative choices in selecting and arranging even uncopyrightable elements.  The court also observed that, even though the movie’s dialogue pervaded the script, Keeling’s “use of a substantial portion of the underlying work presents no hindrance to findings of either fair use or originality.”  Here, Keeling’s “creative contribution” was her arrangement of various stage directions and other devices “to create new parodic meaning.”

This case is noteworthy primarily because, as the Second Circuit observed, fair use is more commonly discussed as a potential defense against an infringement claim by a copyright holder for using a copyrighted work without permission.  That was the posture of several recent prominent fair use cases.  Here, however, the “borrower” is not the defendant but the plaintiff, seeking to protect her creation.  And the opposing party is not the original copyright holder in the Point Break movie, but a third party who argued that the plaintiff could claim no intellectual property rights at all in her parody.  The case lays the foundation for artists whose work incorporates the work of others—for example, parodists and appropriation artists—to protect the resulting art from infringement by third parties.  Conversely, it sends the message that parodies and other artworks that appropriate or incorporate copyrighted material cannot themselves be copied with impunity.   The opinion emphasizes, however, that to warrant protection, the parody or other “new work” must not only make lawful fair use of the underlying work, but must also add sufficient originality—and that the resulting copyright protection extends only to the new work’s original content.