Keeling v. Hars

• Decision Date: 30 October 2015
• Docket Number: No. 13–694–CV.,13–694–CV.
• Citation: 809 F.3d 43
• Parties: Jaime KEELING, Plaintiff–Counter–Defendant–Appellee, v. Eve HARS, Defendant–Appellant, New Rock Theater Productions, LLC, A New York Limited Liability Company, Defendant–Counter–Claimant, Ethan Garber, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

809 F.3d 43

Jaime KEELING, Plaintiff–Counter–Defendant–Appellee,

v.Eve HARS, Defendant–Appellant,New Rock Theater Productions, LLC, A New York Limited Liability Company, Defendant–Counter–Claimant,Ethan Garber, Defendant.^*

No. 13–694–CV.

United States Court of Appeals, Second Circuit.

Submitted: June 26, 2015.

Decided: Oct. 30, 2015.

Steven Paradise, Vinson & Elkins LLP, New York, NY, for Plaintiff–Counter–Defendant–Appellee.

Eve Hars, pro se, Los Angeles, CA, for Defendant–Appellant.

Before: CABRANES, LIVINGSTON, and DRONEY, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

The primary question presented is whether an unauthorized work that makes "fair use" of its source material may itself be protected by copyright.

We hold, for substantially the reasons stated by the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge ), that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contributions. We also reject defendant's challenges to the District Court's jury charge. The District Court's January 11, 2013 judgment is therefore AFFIRMED.

BACKGROUND

Plaintiff–Appellee Jaime Keeling is the author of Point Break Live! ("PBL "), a parody stage adaptation of the 1991 Hollywood action movie Point Break, starring Keanu Reeves and Patrick Swayze. In the film, Reeves plays a rookie FBI agent who goes undercover to infiltrate a gang of bank-robbing surfers led by Swayze's character. The Keeling-authored PBL parody parallels the characters and plot elements from Point Break and relies almost exclusively on selected dialogue from the screenplay. To this raw material, Keeling 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. Massive waves in the film are replaced by squirt guns in the PBL parody. A central conceit of the PBL parody is that the Keanu Reeves character is selected at random from the audience and reads his lines from cue cards, thereby lampooning Reeves's reputedly stilted performance in the movie. Keeling added to the effect that the audience was watching the making of the film by creating a set of film-production characters in the PBL parody, including a director, cinematographer, and production assistants. Keeling possesses no copyright or license with regard to the Point Break motion picture.

Defendant–Appellant Eve Hars, proceeding pro se on appeal, owns production company New Rock Theater Productions, LLC ("New Rock"). In 2007, Keeling executed a production agreement with Hars, pursuant to which New Rock would stage a two-month production run of PBL from October through December 2007. During that time period, Hars conferred with an entertainment attorney and the holder of the copyright to the Hollywood screenplay for Point Break, and eventually Hars came to believe that Keeling did not lawfully own any rights to the PBL parody play. Accordingly, after its initial two-month run, Hars sought to renegotiate the terms of the contract upon its expiration and, in effect, continue to produce PBL without further payment to Keeling. Keeling refused renegotiation, threatened suit, and registered a copyright in PBL, without first obtaining permission from the copyright holders of the original Point Break. Keeling's asserted copyright in PBL became effective on January 4, 2008. Hars and New Rock continued to stage performances of PBL for four years thereafter without payment to or authorization from Keeling.

In December 2010, Keeling brought suit against Hars, New Rock, and New Rock investor Ethan Garber, asserting claims for copyright infringement, breach of contract, and tortious interference with contract. In the District Court proceedings, all parties were represented by counsel. After the District Court denied defendants' motion to dismiss, see Keeling v. New Rock Theater Prods., LLC,

No. 10 Civ. 9345(TPG), 2011 WL 1899762, at *1 (S.D.N.Y. May 17, 2011), defendants asserted counterclaims seeking, inter alia, a declaration that Keeling's PBL copyright registration was invalid. Upon completion of discovery, defendants moved for summary judgment, arguing primarily that PBL, an unauthorized derivative work, was not entitled to copyright protection as a matter of law. The District Court denied defendants' successive motions for summary judgment, ruling that a parody that makes "fair use" of another copyrighted work may contain sufficient originality to merit copyright protection itself. See Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345(TPG), 2011 WL 6202796 (S.D.N.Y. Dec. 13, 2011) ; Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345(TPG), 2012 WL 5974009 (S.D.N.Y. Nov. 29, 2012). The District Court also rejected defendants' argument that a script heavily reliant on theatrical devices, as was PBL 's, could not lawfully constitute original creative expression deserving of copyright protection. 2011 WL 6202796 at *1. Finally, the Court found that multiple outstanding issues of material fact remained—including whether PBL constituted a "fair use" parody of Point Break and whether PBL contained sufficient originality to merit copyright protection. Id.

In December 2012, the case proceeded to a five-day trial by jury. At the close of the evidence, the parties delivered summations focused largely on whether PBL was a parody at all, and if so, whether that parody constituted non-infringing "fair use." Record on Appeal ("ROA"), Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345(TPG)(GWG), Dkt. No. 98, at 567–648 (S.D.N.Y. Dec. 7, 2012). The District Court then charged the jury, beginning with the first question the jury would be asked to answer: "whether [PBL ] was a fair use by way of a parody of the original movie Point Break." Id. at 652. The District Court declined to enumerate each of the four statutory factors pertaining to "fair use," opting instead to attempt to "put a little more content on the discussion," which the District Court believed that the "list of factors" alone lacked. Id. at 655. The pertinent instructions on fair use were as follows:

Now, the person who creates the derivative work has a copyright in that derivative work. Now, if the derivative work is simply somehow really a copy of the original then it may be somehow called a derivative work but it infringes on the owner of the original. But if it is what we call "fair use" then it is not an infringement on the original and it is a new work and it has its own copyright and the author or the creator of the new work owns that copyright as well as owns the new work....

The plaintiff contends that [PBL ] is a fair use of sections of the script of the original movie. The plaintiff contends that this is fair use as a parody and a parody, certainly, can be fair use....

A proper parody is something which generally ridicules to some extent, makes fun of, makes light of the original. Suppose the original is the very serious drama of some kind and if someone comes along and makes a parody, it is generally turning it into something different, humorous, ridiculous. And if that is done it is fair use to use even substantial amounts of the script of the original movie. It is fair use to even use the high points or the high point as long as it is not simply conveying again the original movie. If it takes the script of the original movie and creates something which uses that script to ridicule to make fun of, to make light of to produce humor instead of the original seriousness, then that is a legitimate parody.

Now, the amount of script taken from the original cannot completely go beyond the needs of the parody. In other words, if the parody is for, if we could imagine, a third it is not legitimate to copy the other two thirds and put them out again. But if the amount of script used is reasonably related to the production of the humor, the ridicule, the lightheartedness and so forth that is a legitimate parody and that is fair use.

Now, it is sometimes said that the judge in instructing a jury on fair use is supposed to refer to a list of factors. The list of factors is a list of factors without much content or meaning. And what I am trying do with you now is to refer to the necessary factors but I hope put a little more content on the discussion. And really that's all I have to say to define fair use by way of parody.

Id. at 653–55. No party objected to the District Court's jury instructions. Id. at 668.

The jury returned a verdict in Keeling's favor in the amount of $250,000, finding (a) that Keeling's use of material from the film Point Break was "fair use in the way of a parody," (b) that Keeling was the sole owner of the copyright to PBL, and (c) that defendants infringed Keeling's copyright. Id. at 675–77. The District Court entered judgment on January 11, 2013.

Defendant Hars, now proceeding pro se, appealed. She challenges the District Court's denial of her pretrial motion for summary judgment as well as the subsequent jury verdict in favor of Keeling.¹

DISCUSSION

Though not a model of clarity,² Hars's appellate briefing primarily raises three issues: first, whether PBL, as an unauthorized "fair use," is entitled to copyright protection capable of supporting Keeling's claim of infringement by a third party; second, whether Keeling's contributions to the work—consisting of individually non-copyrightable elements—could be sufficient to support a copyright in PBL ; and third, whether the District Court's jury instructions were erroneous. The first two issues relate to the same question: whether Keeling's work was copyrightable. We consider each issue in...