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On Friday, the 2nd Circuit Court of Appeals took up a dispute that is a bit of a mind-bender and delivered an opinion that determines that a parody is entitled to copyright protection.
The dispute concerns playwright Jamie Keeling’s theatrical adaptation of the 1991 film Point Break, which starred Keanu Reeves as a federal agent who goes undercover as a surfer. In the film, Reeves is unintentionally hysterical, so Keeling got the bright idea to have an audience member chosen at random to recite his lines.
The production company behind the live version stopped paying Keeling, did its own version, and took the position that that Keeling had no right to her script since it was based on the film. This set up the fascinating question of whether someone who creates a parody of copyrighted material could sue someone else who also is doing a parody.
In December 2012, after a judge said absolutely, a jury returned a $250,000 verdict in favor of Keeling. What followed was the appeal where 2nd Circuit judge Jose Cabranes decides that even an unauthorized work that makes fair use of source material is protected.
The judge notes that Keeling used the 1991 film and 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. For example, in Keeling’s PBL parody, Point Break’s death?defying scene in which Reeves’s character must pick up bricks, blindfolded, in a swimming pool takes place, instead, in a kiddie pool.”
The play was fair use — a jury agreed, even the defendant agreed — but the fact that it is an unauthorized work presented a bit of a trickier issue because typically fair use is raised as a defense against copyright claims.
“Here, however, Keeling invoked the fair?use principle to establish an affirmative claim against defendants for unauthorized use of her PBL parody,” writes Cabranes, remarking on the unusual posture of the case before him.
The judge says, though, that derivative works are entitled to copyright protection, separate from the copyright to preexisting material.
“It is not the invocation of fair use that provides the work copyright protection,” he writes. “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 lawful derivative works — such protection.”
The key word there is originality. To use a different example, it means that new Sherlock Holmes films are protected under copyright even if the preexisting material — the early Sir Conan Doyle novels — have fallen into the public domain.
The owner of the production company also tried an argument that if Keeling’s contributions consisted solely of non-copyrightable elements like stage directions and theatrical devices, her work couldn’t support a copyright.
The judge responds that “creative choices made in selecting and arranging even un?copyrightable elements” are protected by law, pointing to the famous Supreme Court decision involving a telephone directory. If the arrangement of raw data gets protection as long as it evinces a minimal degree of creativity, so too does Keeling’s contributions, writes the judge in an opinion that should and will be welcomed by theatrical directors everywhere.
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