Case 1:10-cv-09345-TPG-GWG Document 16 Filed 05/17/11 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`JAIME KEELING,
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`Defendants.
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`Plaintiff,
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`– against –
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`NEW ROCK THEATER PRODUCTIONS,
`LLC, EVE HARS, and ETHAN GARBER,
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`
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`10 Civ. 9345 (TPG)
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`OPINION
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`
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`This case involves a claim for copyright infringement by plaintiff,
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`Jaime Keeling, against defendants, New Rock Theater Productions (“New
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`Rock”) and Eve Hars and Ethan Garber. Defendants have moved to
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`dismiss, arguing that Keeling’s work, as a parody, cannot be copyrighted.
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`Defendants’ motion is denied.
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`FACTS
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`These facts are taken from Keeling’s complaint and, for the
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`purposes of this motion, are assumed to be true.
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`
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`Keeling is the author and owner of copyrights in the script for
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`“Point Break LIVE!”, a stage play that is a parody of “Point Break,” a
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`popular motion picture released in 1991. Keeling does not have a
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`copyright or license with regard to the original motion picture. Keeling’s
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`copyrights are for additions and modifications she made to “Point Break”
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`in parodying it in her script for “Point Break LIVE!”. Keeling did not
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`---------------------------------------------x
`
`:
`JAIME KEELING,
`:
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`Defendants.
`---------------------------------------------x
`
`
`Plaintiff,
`
`
`– against –
`
`NEW ROCK THEATER PRODUCTIONS,
`LLC, EVE HARS, and ETHAN GARBER,
`
`
`
`
`
`
`10 Civ. 9345 (TPG)
`
`OPINION
`
`
`
`This case involves a claim for copyright infringement by plaintiff,
`
`Jaime Keeling, against defendants, New Rock Theater Productions (“New
`
`Rock”) and Eve Hars and Ethan Garber. Defendants have moved to
`
`dismiss, arguing that Keeling’s work, as a parody, cannot be copyrighted.
`
`Defendants’ motion is denied.
`
`FACTS
`
`
`
`These facts are taken from Keeling’s complaint and, for the
`
`purposes of this motion, are assumed to be true.
`
`
`
`Keeling is the author and owner of copyrights in the script for
`
`“Point Break LIVE!”, a stage play that is a parody of “Point Break,” a
`
`popular motion picture released in 1991. Keeling does not have a
`
`copyright or license with regard to the original motion picture. Keeling’s
`
`copyrights are for additions and modifications she made to “Point Break”
`
`in parodying it in her script for “Point Break LIVE!”. Keeling did not
`
`
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`Case 1:10-cv-09345-TPG-GWG Document 16 Filed 05/17/11 Page 2 of 5
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`obtain permission from the copyright holders of “Point Break” before
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`registering her own copyrights of her parody.
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`
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`In 2007, Keeling negotiated a production agreement with Hars, the
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`owner of New Rock, to stage a two-month run of performances of “Point
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`Break LIVE!” in Los Angeles. Although the play was successful, Hars did
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`not renew the production agreement with Keeling. Instead, Hars and
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`New Rock allegedly repudiated the original agreement and took the
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`position the Keeling had no rights to her script. These actions by Hars
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`and New Rock were allegedly instigated by Garber, a New Rock investor.
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`
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`Since early 2008, New Rock has continued to stage the play in Los
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`Angeles and elsewhere without Keeling’s permission and without
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`compensating for the use of her script.
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`DISCUSSION
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`
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`In their motion to dismiss, defendants argue that Keeling’s parody,
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`as a derivative work, cannot be protected by copyright without the
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`permission of the original copyright owner. This contention has no basis
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`in law.
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`
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`Creators of original works have many rights and remedies against
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`those who infringe their work. However, their rights are limited when
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`someone takes the original work and derives something new and
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`different from it. This limitation on rights is called “fair use.” 17 U.S.C.
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`§ 107. A parody is fair use under § 107. Campbell v. Acuff-Rose Music,
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`Inc., 510 U.S. 569, 579 (1994).
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`- 2 -
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`Case 1:10-cv-09345-TPG-GWG Document 16 Filed 05/17/11 Page 3 of 5
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`So long as the creator of the derivative work stays within the
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`bounds of fair use and adds sufficient originality, she may also obtain a
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`copyright. 17 U.S.C. § 103(a); see also Durham Industries, Inc. v. Tomy
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`Corp., 630 F.2d 905, 908-09 (2d Cir. 1980). The copyright for a
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`derivative work is more limited than that for an original work, however.
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`Copyright protection for a derivative work “extends only to the material
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`contributed by the author of such work, as distinguished from the
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`preexisting material employed in the work.” Id. at § 103(b); see also
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`Earth Flag Ltd. v. Alamo Flag Co., 153 F. Supp. 2d 349, 353 (S.D.N.Y.
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`2001) (“Although derivative works are protectible, copyright protection
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`extends only to the non-trivial, original contributions of the derivative
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`work’s author.”). Although the original creator may create a derivative of
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`her original work, § 106(2), nowhere is it stated that the creator of a
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`derivative work cannot copyright the new portions of that derivative work
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`without permission from the creator of the original work.
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`In fact, creators of derivative works often register their own
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`copyrights--without permission from the holder of the original copyright--
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`and then sue those who create later derivative works from the same
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`original but whose later derivative works are alleged to be too similar to
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`the earlier derivative work and thus infringe on the earlier derivative
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`work. See, e.g., Canal+ Image UK Ltd. v. Lutvak, No. 10 Civ. 1536 (RJH),
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`2011 WL 1158439 (S.D.N.Y. March 29, 2011); National Broadcasting Co.,
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`Inc. v. Sonneborn, 630 F. Supp. 524 (D.Conn. 1985). Nowhere in these
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`- 3 -
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`Case 1:10-cv-09345-TPG-GWG Document 16 Filed 05/17/11 Page 4 of 5
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`cases it is ever questioned whether the plaintiff--creator of the earlier
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`derivative work--had obtained permission from the original copyright
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`holder before registering her own copyright in the derivative work.
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`
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`Defendants, in their motion to dismiss, cite to several cases in
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`support of the contention that derivative works cannot receive copyright
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`protection without permission of the original work’s copyright holder.
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`None of the cited cases says any such thing. In fact, none of the cited
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`cases even involves the issue of the creator of a derivative work
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`attempting to enforce her copyright. Instead, they all involve claims by
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`original copyright holders alleging that the derivative work at issue is not
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`fair use. These cases are uniformly unhelpful to the question at hand.
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`DISCUSSION
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`
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`Keeling’s derivative work is eligible for copyright protection and
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`therefore defendants’ motion to dismiss is denied.
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`- 4 -
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`Case 1:10-cv-09345-TPG-GWG Document 16 Filed 05/17/11 Page 5 of 5
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`Dated: New York, New York
`May 17,2011
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`Thomas P. Griesa
`U.S.D.J.
`
`- 5
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