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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`JAIME KEELING,
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`Plaintiff,
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`v.
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`NEW ROCK THEATER PRODUCTIONS,
`LLC, EVE HARS, and ETHAN GARBER,
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`Defendants.
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`..
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`USDCSDNY
`DOCUMENT
`ELBCfRONlCALLY FILED
`OOC#:_~---
`DATE. t1LED: t:'-th \\, 1ftg::
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`10 Civ. 9345
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`OPINION
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`Ibis is a copyright dispute between plaintiff Jaime Keelmg and defendants Eve Hars,
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`Ethan Garber, and their production company, New Rock Theater Productions, LLC. The
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`work at issue is a theater production called Point Break LIVE!
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`A jury trial was concluded in this case on December 7,2012. The jury found in
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`Keeling's favor, and concluded that defendants infringed K(~eling's copyright in the work.
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`'I'he jury also found, as a prerequisite to its finding of infringement, that Point Break LIVE!
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`made fair use of the film Point Break. OnJanuary 10,201:3, the court permanently
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`enjoined defendants from staging additional infringing performances of the work.
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`Hars now moves to stay the enforcement of that injunc1jon pending her appeal to the
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`Second Circuit Court of Appeals. The motion is denied. 1
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`I
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`It should be mentioned that, though Hars is correct that her request for additional time to oppose plaintiffs motion
`for a permanent injunction was never ofiicially filed due to some confusion regarding her representation. the court
`nonetheless did receive and review it. And, per Hars' request, the court considered the arguments she presented in
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`Case 1:10-cv-09345-TPG-GWG Document 132 Filed 03/11/13 Page 2 of 5
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`Whether to stay enforcement of an injunction pending appeal is left to the discretion
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`of the court. It is the movant's - Hal's' - burden, however, to demonstrate that the
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`circumstances justify dIe court's exercising this discretion to grant a stay. Nken v. Holder,
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`556 U.S. 418,434 (2009).
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`In determining wheilier ilie movant has met dlls burden, ilie court considers "0)
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`wheilier ilie stay applicant has made a strong showing iliat he is likely to succeed on ilie
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`merits; (2) wheilier ilie applicant will be irreparably il1jured absent a stay; (3) whether
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`issuance of dle stay will substantially injure dIe oilier parties interested in the proceeding;
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`and (4) where the public interest lies." S.E.C. v. Citigroup Global Markets Inc., 673 F.3d
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`158, 162 (2d Cif. 2012).
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`In iliis case, the court is cognizant of dle fact that ilie permanent injunction may cause
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`significant hardship for Hars and ilie many oilier individuals employed by productions of
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`Point Break LIVE!. This, combined wiili Keeling's apparent lack of interest in putting on
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`productions of Point Break LIVE! herself - except as expr,~ssed in her opposition to iliis
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`motion - lead ilie court to conclude that, all iliings being equal, ilie public interest would
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`be better served by granting a stay. It seems clear iliat Hars would be more greatly harmed
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`by an erroneous decision by iliis court to deny her ilie stay than Keeling would be by an
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`erroneous decision to grant it.
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`that:md other letters in opposition to plaintiffs motion. The court granted plaintiff's motion, not because it never
`receIved Hars' opposition and request for additional time, but for the same substantive reason it now denies the
`motion to stay enforcement of that injunction.
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`Case 1:10-cv-09345-TPG-GWG Document 132 Filed 03/11/13 Page 3 of 5
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`Nonetheless, however, the importance of these considerations is conditioned upon
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`Hars' likelihood of success on appeal, a possibility that the court regards as extremely
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`remote.
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`The essence of Hars' argument on appeal will, she says, be the following. Though she
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`agrees that a work of parody may be entided to copyright protection, that protection, she
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`points out, only extends to the original contributions of the parodist. But Keeling's script,
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`she contends, consists only of dialogue original to the film Point Break combined with such
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`non-copyrightable elements such as stage direction and theatrical devices. Thus, she
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`argues, there is no residue of copyrightable material in Point Break LIVE!
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`Hars' legal argument is correct, as far as it goes. But Hal'S errs in her assessment that
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`Point Break LIVE/has no copyrightable content. Her asse;sment is that, because it
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`consists only of un-protectable elements the total work itself cannot be copyrightable. But
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`this overlooks the fact that copyright law protects not just th,~ elements themselves, but the
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`creative decisions made by an author in choosing how to ar~ange even un-protectable
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`elements.
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`The compilation author typically chooses which facti to include, in what
`order to place them, and how to arrange the collected data so that they may
`be used effectively by readers. These choices as to selection and
`arrangement, so long as they are made independent1y by the compiler and
`entail a minimal degree of creativity, are sufficiendy original that Congress
`may protect such compilations through the copyright laws.
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`Feist Publ'ns, Inc. v. Rural Tel. Servo Co., Inc., 499 U.S. 340, 348 (1991). It is worth
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`noting that, in the Feist decision, the court made clear that even a telephone directory
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`Case 1:10-cv-09345-TPG-GWG Document 132 Filed 03/11/13 Page 4 of 5
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`could be copyrightable if the un-protectable factual elements were arranged "vith a
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`"minimal degree" of creativity. Thus, regardless of whether the Point Break LIVE! script
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`is, in fact, exclusively composed of un-protectable elements, Keeling's creative contribution,
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`and thus her copyright, is in "the original way in which the author has 'selected,
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`coordinated, and arranged' the elements of his or her work." Knitwaves, Inc. v. Lollytogs
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`Ltd., 71 F.3d 996, 1004 (2d Cir. 1995).
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`It is therefore well established in this Circuit that Keeling's script, even if it does
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`consist only of a creative arrangement of un-protectable elements, is entitled to copyright
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`protection.
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`Hars also suggests that there is no case in this Circuit in which fair use has been used
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`as a "sword" instead of a "shield." And therefore, she contends, this case presents serious
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`legal issues that the Court of Appeals might resolve in her favor. The court agrees that
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`there is no such case, but it does not follow from this that the legal principle at issue is
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`undecided and requires further, serious deliberation by the Court of Appeals. That an
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`author may create a parody of another work and then enforce her copyright in dlat work
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`against others follows straightfonvardly from the text of the copyright act. The concept of
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`"fair use" is a legal principle employed to determine the extent and manner in which a
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`work is permitted to copy from anodler. 17 U.S.c. § 107. A work that makes fair use of
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`another is, therefore, a derivative work. 17 U.S.c. § 101. The original material added to a
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`derivative work is unambiguously entitled to copyright protection, so long at tlle material it
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`reuses is not reused unlawfully (e.g., if that reuse counts as a fair use). 17 U.S.c. § 103.
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`Case 1:10-cv-09345-TPG-GWG Document 132 Filed 03/11/13 Page 5 of 5
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`And again, in this case, Keeling's work contains, at the very least, a creative arrangement of
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`un-protectable elements, an arrangement which itself constitutes a creative contribution
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`entitled to copyright protection. Knitwaves, Inc., 71 F.3d at 1004.
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`The court concludes, therefore, that Hars' likelihood of success on appeal is very
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`small. Accordingly, given the court, the public, and the parties' interest in bringing this
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`litigation to its ultimate conclusion, as well as Keeling's legitimate interest in vindicating her
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`copyright, Hars' motion to stay enforcement of the permanent injunction is denied.
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`So ordered.
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`Dated: New York, New York
`March 11, 2013
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`--~~~--~~~~----~-----
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`Thomas P. Griesa
`United States DistrictJudge
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