This guest post was contributed by Travis J. Sabaiti, a J.D. candidate in the Southwestern Entertainment Law and Web 2.0 Fall, 2015, class:
When two funny friends in New York decide to riff in a theatrical production, Point Break LIVE!, on Point Break, a surfer-detective film that many critics found to be more than a few waves on the side of awful, comedy ensued. For awhile. But the legal tangle that then followed after the comic duo had a falling out required the judges of the U.S. Court of Appeals for the Second Circuit to unsnarl.
Before anyone cues a laugh track over this case’s conclusion, Entertainment Law practitioners well-versed in copyright might want to look again at this case and see if it changes conventional wisdom about protections for parody.
Point Break LIVE! is a stage parody of the 90’s surfer-action movie. The theatrical show is intentionally bad, substituting ocean waves for water guns and replacing Keanu Reeves’ character from the original movie with a random audience member.
Jamie Keeling and Eve Hars, the duo behind the spoof, had a falling out, and when Hars continued to put on the play, Keeling filed for copyright protection of the parody production. She then sued Hars for copyright infringement.
Hars countered that the work was an “unauthorized derivative work,” which was merely protected by fair use, and, therefore, not actually suitable for copyright protection.
Although a lower court agreed with Keeling, Hars appealed, pro se, to the appellate court, which recently found the production could be copyrighted and upheld a jury award to Keeling $250,000, determining she was the play’s sole owner.
The court determined that derivative works, protected by the affirmative defense of fair use, also can be original enough to warrant their own copyright.
It’s true that parodies can be complex creations and can sometimes be more insightful than the original work. Parodies can enlighten audiences about the complex issues of modern society by exposing flaws in contemporary media, thereby exposing flaws in modern society.
But this art form, along with satire, has posed real challenges to courts, including the Supreme Court, in drawing copyright lines.
As the appellate court analyzed the Point Break LIVE case, what made its circumstances different was the choice by party Keeling to use fair use not as a defense but as an “affirmative claim” against defendant Hars for unauthorized use. Hars, acting as her own attorney in the appeal, said the court could recognize fair use as a “shield” but not as a “sword.” Alas, the appellate judges parried that thrust and others in her briefs, which they said were “not a model of clarity.”