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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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`This is an action for copyright infringement, breach of contract,
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`and tortious interference with contractual relations. Plaintiff Jaime
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`Keeling claims defendants staged live productions of “Point Break LIVE!,”
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`an alleged parody that she wrote of the popular “Point Break” film,
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`without her permission, in violation of her copyright in that parody and
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`contractual rights owed to Keeling by defendants.
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`Defendants move for summary judgment dismissing Keeling’s
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`copyright claim and confirming their counterclaim for copyright
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`invalidity. The motion is denied.
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`DISCUSSION
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`Defendants’ motion first reiterates an argument – that Keeling
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`could not have obtained copyright in her script of “Point Break LIVE!”
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`because she did not have the permission of the original copyright holder
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`– that this court has already rejected on two occasions. The court again
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`finds this argument unpersuasive, for the reasons discussed in its prior
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`10 Civ. 9345 (TPG)
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`OPINION
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`Plaintiff,
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`– against –
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`NEW ROCK THEATER PRODUCTIONS,
`LLC, et al.,
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`Case 1:10-cv-09345-TPG-GWG Document 41 Filed 12/13/11 Page 2 of 4
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`opinions in this case. See Keeling v. New Rock Theater Prods., LLC, No.
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`10 Civ. 9345 (TPG), 2011 U.S. Dist. LEXIS 52736, at *2-5 (S.D.N.Y. May
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`17, 2011) (denying defendants’ motion to dismiss); Keeling v. New Rock
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`Theater Prods., LLC, No. 10 Civ. 9345 (TPG), 2011 U.S. Dist. LEXIS
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`61377, at *2-3 (S.D.N.Y. June 7, 2011) (denying defendants’ motion for
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`reconsideration).
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`Defendants also claim that Keeling’s “Point Break LIVE!” does not
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`contain any original elements that are protectable by copyright, but
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`merely makes use of “theatrical devices.” Although defendants are
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`correct that theatrical devices cannot be copyrighted, Keeling is entitled
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`to copyright for her original creative expression that makes use of
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`theatrical devices. See Harper & Row, Publrs. v. Nation Enters., 471 U.S.
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`539, 547 (1985).
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`The remainder of the motion is denied because there are factual
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`issues for trial.
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`First, defendants claim Keeling is not entitled to copyright
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`protection in her script because the original “Point Break” “pervades” her
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`“Point Break LIVE!” script. See Eden Toys, Inc. v. Florelee Undergarment
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`Co., Inc., 697 F.2d 27, 34 n. 6 (2d Cir. 1982). Keeling argues “Point
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`Break” does not pervade her script, and has set forth evidence
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`demonstrating a number of original elements in her script. Based on the
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`evidence Keeling has submitted and the differences between the original
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`Case 1:10-cv-09345-TPG-GWG Document 41 Filed 12/13/11 Page 3 of 4
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`“Point Break” and Keeling’s “Point Break LIVE!”, there are triable issues
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`of fact.
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`Second, defendants claim that they are entitled to judgment as a
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`matter of law because “Point Break LIVE!” is not a parody of “Point
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`Break,” but rather is just a more humorous stage version of “Point
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`Break” that makes no critical commentary on “Point Break.” However,
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`Keeling has set forth sufficient evidence for a reasonable jury to find that
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`“Point Break LIVE!” is a parody of “Point Break,” which criticizes and
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`comments on the substance and style of “Point Break” by the use of
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`humor and exaggeration.
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`Third, there is a triable issue regarding the impact of Keeling’s
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`“Point Break LIVE!” on the market for the original “Point Break” motion
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`picture, which is an element of the fair use defense to copyright
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`infringement. See 17 U.S.C. § 107. Keeling seeks discovery regarding
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`the impact of her script on the market for the original “Point Break”
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`motion picture because she believes her version of “Point Break LIVE!”
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`may actually enhance the market for the original “Point Break.” Such
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`discovery is appropriate.
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`Finally, defendants have not established conclusively that their
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`performances of “Point Break LIVE!” were not substantially similar to
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`plaintiff’s script. As a preliminary matter, defendants contend that the
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`court should compare Keeling’s script to a script (“the NRTP script”) that
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`defendants have attached to their motion papers. Defendants claim they
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`Case 1:10-cv-09345-TPG-GWG Document 41 Filed 12/13/11 Page 4 of 4
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`utilized the NRTP script in their performances of "Point Break LIVE!."
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`Keeling has produced a different script that she obtained in discovery,
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`which she claims was used in defendants' performances of "Point Break
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`LIVE!". Thus, there is an issue of fact with regard to which script or
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`scripts defendants used in their live performances of "Point Break LIVE!".
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`Moreover, due to a number of similarities between Keeling's script, the
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`NRTP script, and defendants' live productions of "Point Break LIVE! ,"
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`defendants have not shown that they are entitled to summary judgment
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`on their claim that their performances of "Point Break LIVE!" were not
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`substantially similar to Keeling's script.
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`CONCLUSION
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`Defendants' motion for summary judgment is denied. This opinion
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`disposes of the motion listed as document number 25 on the docket.
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`SO ORDERED.
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`Dated: New York, New York
`December 13, 2011
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`U.S. District Judge
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