Original Elements of Unauthorized Parody Copyrightable: Second Circuit | Practical Law

Original Elements of Unauthorized Parody Copyrightable: Second Circuit | Practical Law

In Keeling v. Hars, the US Court of Appeals for the Second Circuit affirmed the district court's holding that the creator of an unauthorized derivative work who makes fair use of preexisting copyrighted material and adds sufficient originality may claim protection under the Copyright Act for original contributions to the derivative work.

Original Elements of Unauthorized Parody Copyrightable: Second Circuit

Practical Law Legal Update w-000-7291 (Approx. 3 pages)

Original Elements of Unauthorized Parody Copyrightable: Second Circuit

by Practical Law Intellectual Property & Technology
Published on 03 Nov 2015 • USA (National/Federal)
In Keeling v. Hars, the US Court of Appeals for the Second Circuit affirmed the district court's holding that the creator of an unauthorized derivative work who makes fair use of preexisting copyrighted material and adds sufficient originality may claim protection under the Copyright Act for original contributions to the derivative work.
On October 30, 2015, in Keeling v. Hars, the US Court of Appeals for the Second Circuit affirmed the US District Court for the Southern District of New York's holding that the creator of an unauthorized derivative work who makes fair use of preexisting copyrighted material and adds sufficient originality may claim protection under the Copyright Act for any original contributions ( (2d Cir. Oct. 30, 2015)).
This case involved a parody stage adaptation of the 1991 Hollywood action movie, Point Break. The parody, entitled Point Break Live! (PBL), authored by Jaime Keeling:
  • Paralleled the characters and plot elements from the original, relying almost exclusively on selected dialogue from the screenplay.
  • Added jokes, props, exaggerated staging, and humorous theatrical devices to transform the plot and dialogue into an irreverent, interactive theatrical experience.
Keeling did not own the copyright or have a license to the Point Break film. In 2007, Keeling executed a production agreement with Eve Hars, who owned a production company, to stage a two-month production run of PBL. After this two month period, Hars continued producing PBL without further payment to Keeling, under the belief that Keeling did not lawfully own any rights to PBL.
In 2010, Keeling sued Hars and her production company (collectively Hars), among other things, for copyright infringement. After completing discovery, Hars moved for summary judgment, arguing that PBL was an unauthorized work and was not entitled to copyright protection. The district court denied the motion, ruling in relevant part, that a parody that made fair use of a copyrighted work may contain sufficient originality to itself enjoy copyright protection. After trial, the jury returned a verdict in Keeling's favor, finding that:
  • Keeling's parody use of material from the film Point Break was fair use.
  • Keeling was the sole owner of the copyright to PBL.
  • Hars infringed on Keeling's copyright.
On appeal, Hars challenged the district court's denial of summary judgment, as well as the jury verdict. Hars argued that:
  • PBL, as unauthorized fair use, was not entitled to copyright protection.
  • Keeling's contributions to the work, consisting of individually non-copyrightable elements, were not sufficient to support a copyright in PBL.
  • The district court's failure to enumerate each of the four fair use factors in its jury instructions was erroneous.
The Second Circuit rejected all of Hars' arguments. With respect to Hars' arguments on whether PBL was copyrightable, the Second Circuit explained that:
  • Hars did not dispute the jury's verdict that PBL was fair use.
  • The Copyright Act (17 U.S.C. § 103) makes it clear that unauthorized but lawful fair use may itself merit copyright protection, explaining that:
    • derivative works are entitled to independent copyright protection; and
    • it is the originality of the fair use work that is protectable, while the fair use makes it a lawful work.
  • The policy behind the Copyright Act, to promote development in arts and science, supports providing copyright protection to original fair use parodies.
  • Even if the individual elements of Keeling's work are not copyrightable, their selection and arrangement provides sufficient originality to merit protection.
The Second Circuit also held that the district court had not erred in its jury instructions because the district court's failure to describe all four fair use factors did not ultimately affect Hars' substantial rights.