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Media Alerts - Keeling v. Hars et al. - Second Circuit
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October 31, 2015
  Keeling v. Hars et al. - Second Circuit
Headline: Second Circuit holds derivative stage production parody of film Point Break is eligible for independent copyright protection.

Area of Law: Copyright

Issue(s) Presented: Whether a derivative work that satisfies the fair use exception under copyright law can be independently copyrighted.

Brief Summary: Jaime Keeling is the author of Point Break Live!, a stage production that parodies the film Point Break. The play relies almost exclusively on the dialogue from the film and juxtaposes that dialogue with sight gags and aspects such as having a member of the audience play the part of Keanu Reeves' character, reading from cue cards as a commentary on Reeves' supposedly wooden performance in the film.

In 2007, Keeling executed a contract with Eve Hars, the owner of a production company, New Rock Theater Productions, LLC. The contract allowed for a two month production run of Point Break Live!. At the conclusion of that run, Hars, who had become convinced that Keeling owned no rights to the play, attempted to renegotiate the contract and continued producing the play. Keeling registered a copyright in the play that became effective on January 4, 2008, and Hars continued producing the play for four years without paying anything to Keeling.

The underlying suit followed, and the United States District Court for the Southern District of New York denied Hars' motion for summary judgment. The district court judge instructed the jury that if they found the play constituted a "proper parody," they could find it to be a "fair use" derivative work that was independently copyrightable. The judge did not explicitly instruct the jury on all four of the fair¿use factors listed in 17 U.S.C. § 107, referencing them indirectly but stating that the list was "without much content or meaning." At trial, the jury found for Keeling in the amount of $250,000.

Hars appealed, arguing that a fair use of copyrighted material could not be the subject of an independent copyright in the new material. In essence, because the play borrowed so heavily from the film Point Break, even if it was a fair use it could not be copyrighted. Hars also argued that the district court judge should have instructed the jury on all four of the fair-use factors. The Second Circuit held that Keeling could claim independent copyright protection for her work, and that the parody exhibited the minimal degree of originality required for copyright protection to extend to it. It also held that the district court judge's instructions on originality and fair use were proper.

To read the full opinion, please visit:

Panel: Judges Cabranes, Livingston and Droney

Argument Date: 6/26/2015 (decided on submission)

Date of Issued Opinion: 10/30/2015

Docket Numbers: 13-694-cv

Decided: Affirmed

Case Alert Author: Gavin Michael Strube & Jacob Sher

Counsel: Steven Paradise, Vinson & Elkins LLP, New York, NY, for Plaintiff-Counter-Defendant-Appellee. Eve Hars, pro se, Los Angeles, CA, for Defendant-Appellant

Author of Opinion: Judge Cabranes

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 10/31/2015 09:59 AM     2nd Circuit  

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