Keeling v. Hars
2015 U.S. App. LEXIS 19085, 809 F.3d 43, 116 U.S.P.Q. 2d (BNA) 1664 (2015)
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Rule of Law:
An unauthorized derivative work that qualifies as a fair use of its source material and contains sufficient original contributions is itself eligible for copyright protection for those original elements.
Facts:
- Jaime Keeling authored "Point Break Live!" ("PBL"), a parody stage adaptation of the 1991 movie "Point Break," without obtaining a license or permission from the movie's copyright holders.
- PBL used the movie's characters, plot, and dialogue but added original comedic elements, such as replacing ocean waves with squirt guns and casting a random audience member to read the lead character's lines from cue cards to mock the actor's performance.
- In 2007, Keeling entered into a production agreement with Eve Hars's company, New Rock, for a two-month production run of PBL.
- After the initial run, Hars came to believe Keeling did not lawfully own any rights to PBL because it was an unauthorized work.
- Hars and New Rock continued to stage performances of PBL for four years after their agreement with Keeling expired, without Keeling's authorization and without making any further payments to her.
- In response to Hars's continued production, Keeling registered a copyright for PBL.
Procedural Posture:
- Jaime Keeling sued Eve Hars and her company in the U.S. District Court for the Southern District of New York, asserting claims for copyright infringement and breach of contract.
- The defendants' motion to dismiss was denied by the trial court.
- The defendants asserted a counterclaim seeking a declaration that Keeling’s copyright registration was invalid.
- The defendants' motion for summary judgment, which argued that Keeling's work was not entitled to copyright protection as a matter of law, was denied by the trial court.
- The case proceeded to a jury trial, which resulted in a verdict for Keeling for $250,000.
- The jury found that Keeling's work was a 'fair use' parody, that she was the sole owner of the copyright, and that the defendants had infringed her copyright.
- Hars, the defendant, appealed the trial court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does an unauthorized derivative work that constitutes a "fair use" of its source material, and contains sufficient original elements, qualify for its own copyright protection?
Opinions:
Majority - Cabranes
Yes. An unauthorized work may be protected by its own copyright if its creation falls under the doctrine of fair use and it contains sufficient original authorship. The Copyright Act prohibits extending protection to any part of a work in which preexisting material has been used 'unlawfully.' However, a 'fair use' of copyrighted material is, by definition, a lawful use, even if it is unauthorized. Therefore, if a creator's use of source material is a lawful fair use, and the creator adds sufficient original material, the new work is eligible for copyright protection for its original contributions. The court also reasoned that originality can be found not just in new text, but in the creative selection, coordination, and arrangement of even uncopyrightable elements like stage directions and theatrical devices to create a new, transformative work.
Analysis:
This decision clarifies that fair use can function as a 'sword' to establish an affirmative claim of copyright, not merely as a 'shield' to defend against an infringement claim from the original copyright holder. It strengthens protections for creators of transformative works, such as parodies, by allowing them to secure copyright for their own original contributions. This precedent encourages the creation of parody and commentary by assuring authors that their original work can be protected from infringement by third parties, even if the work itself is based on preexisting copyrighted material used without permission.
