Case 1:19-cv-07470-LTS-VF Document 79 Filed 05/12/22 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`SKETCHWORKS INDUSTRIAL STRENGTH
`COMEDY, INC.,
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`Plaintiff,
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`-v-
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`JAMES H. JACOBS, et al.,
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`Defendants.
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`No. 19-CV-7470-LTS-VF
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`MEMORANDUM OPINION AND ORDER
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`Sketchworks Industrial Strength Comedy, Inc. (“Plaintiff” or “Sketchworks”),
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`brings this action against James H. Jacobs, as Trustee of the James H. Jacobs Trust, and Richard
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`Casey, Peggy Ann Adams, Martha Bombardi, Leonard Casey, and Linda Casey, as Trustees of
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`the Warren Casey Trust Under Will (together “Defendants”), seeking a declaratory judgment,
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`pursuant to 28 U.S.C. section 2201, that its theater production, titled Vape, constitutes fair use of
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`the musical Grease under the Copyright Act, 17 U.S.C. section 107, and therefore does not
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`infringe Defendants’ copyright in Grease. (Docket entry no. 56, Second Amended Complaint,
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`(“SAC”).) Plaintiff asserts that Vape is a parody of Grease and seeks a judicial determination
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`that Vape does not infringe on Defendants’ copyright interest in Grease or any derivatives
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`thereof. (Id. ¶¶ 69, 74.) Before the Court are Plaintiff’s and Defendants’ cross-motions for
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`judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). (Docket entry
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`nos. 63, 69.) The Court has jurisdiction of this case pursuant to 28 U.S.C. sections 1331,
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`1338(a), and 1367.
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`The Court has considered carefully the parties’ submissions and arguments and,
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`for the following reasons, grants Plaintiff’s motion for judgment on the pleadings in its entirety,
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`and denies Defendants’ cross-motion for judgment on the pleadings in its entirety.
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`BACKGROUND
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`The following recitation of facts is drawn from the Second Amended Complaint,
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`Defendants’ answer to the Second Amended Complaint setting forth Defendants’ counterclaims
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`(see docket entry no. 57 (“Def. Answer”)), and Plaintiff’s answer to Defendants’ counterclaims.
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`(See docket entry no. 58 (“Pl. Answer”).) Because the parties have filed cross-motions for
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`judgment on the pleadings, the Court will “employ the same standard applicable to Rule 12(b)(6)
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`motions to dismiss” and “[a]ccept[] the non-moving party’s allegations as true” for the purposes
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`of this decision, Vivar v. City of New York, No. 18-CV-5987, 2020 WL 1505654, at *5
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`(S.D.N.Y. Mar. 30, 2020) (quotation omitted), with the exception that the Court is “not limited to
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`looking at the Complaint” and “need not ignore the well-pleaded allegations of the answer[s] that
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`are not controverted in the [respective] pleading[s].” Harper v. City of New York, No. 11-CV-
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`4333-CM, 2013 WL 432599, at *1 (S.D.N.Y. Jan. 31, 2013) (explaining Rule 12(c) standard);
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`see also Koninklijke Philips Elecs. N.V., v. The ADS Grp., 694 F. Supp. 2d 246, 250 n.7
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`(S.D.N.Y. 2010) (explaining that a “Rule 12(c) motion differs from a Rule 12(b)(6) motion in
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`that it implicates the pleadings as a whole as opposed to simply the complaint and its
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`attachments”) (citing Wright & Miller, Federal Practice & Procedure, §§ 1367, 1368 (2d. ed
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`1995)).
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`Plaintiff operates a sketch comedy company incorporated in Georgia, and owns a
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`copyright in Vape, an alleged parody of the popular theatrical work, Grease, of which Warren
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`Casey1 and Defendant James H. Jacobs are co-authors. (SAC ¶¶ 2, 5, 22.) Grease follows a
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`group of teenagers in the 1950s “as they navigate adolescence, peer pressure, personal values,
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`sexual exploration, love and friendship.” (Id. ¶ 8.) Grease has been produced in multiple
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`versions, including the original musical play and a popular 1978 film version featuring John
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`Travolta and Olivia Newton-John, on which Vape is allegedly based. (Id. ¶¶ 8-9.) The film’s
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`story line begins on summer break, and showcases a summer romance between a local teenager,
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`Danny Zuko, and Sandy Olsson, a teenager visiting from abroad. (Id. ¶ 10.) The school year
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`then begins and, rather than returning home after the summer break, Sandy enrolls at Rydell
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`High School, which Danny attends along with other supporting characters including Rizzo,
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`Frenchy, Marty, and Jan, who comprise the “Pink Ladies” friend group, and Danny’s friends,
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`Kenickie, Doody, Sonny, and Putzie, who comprise Danny’s greaser gang known as the “T-
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`Birds.” (Id. ¶¶ 11-12.) The film follows the challenges these characters face in their
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`relationships and personal lives, as well as the ups-and-downs of Sandy and Danny’s romantic
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`relationship. (Id. ¶¶ 13-21.) The film culminates in Danny and Sandy’s reunion, where Sandy,
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`“who is normally conservatively dressed . . . shocks Danny when she arrives [on the last day of
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`school] provocatively dressed like a greaser in black leather with teased hair and smoking a
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`cigarette.” (Id. ¶¶ 19-20.) They proceed to ride off together “in a car that flies off into the sky.”
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`(Id. ¶ 21.)
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`Vape, a stage musical, follows the same characters along roughly the same story-
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`arc as Grease, depicting Danny and Sandy’s romance over their summer vacation, and the ups-
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`1
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`Warren Casey is deceased. (Docket entry no. 68 (“Def. Mem.”) at 18.) Defendants
`Richard Casey, Peggy Ann Adams, Martha Bombardi, Leonard Casey, and Linda Casey
`are the special trustees responsible for administering the Casey Trust’s various copyrights
`and trademarks associated with the production of Grease. (SAC ¶ 4.)
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`and-downs their relationship takes over the course of a school year at Rydell High School. (SAC
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`¶¶ 23-24, 31-55.) Vape also depicts the relationships and challenges experienced by the
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`characters Rizzo, Frenchy, Marty, and Jan, who name their girl group the “#PinkSquad,” and
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`Kenickie, Doody, Sonny, and Putzy, who, together with Danny, refer to their group as “the-T-
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`Bros.” (Id. ¶¶ 24, 26, 27, 33.) In addition to using the setting and character names from Grease,
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`Vape features portions of nine songs from Grease and/or its licensed versions, including the
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`songs’ instrumental tracks and chord progressions. (Def. Answer at 10-11, ¶¶ 12-13.)
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`Plaintiff asserts that Vape is a parody of Grease, explaining that it “pokes fun at
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`various absurdities in Grease” (SAC ¶¶ 52, 55), and “uses millennial slang, popular culture, a
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`modern lens, and exaggeration to comment upon the plot, structure, issues and themes of Grease
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`and to criticize its misogynistic and sexist elements.” (SAC ¶ 53.) In so doing, Vape, which was
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`written and directed by women, “reexamines Grease from a female perspective in the #MeToo
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`era,” and “exposes how the ‘humor’ and rape-cultured elements of Grease have not aged well”
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`by, for example, “directly criticiz[ing] Grease’s ‘happy ending,’ where a woman completely
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`changes who she is in order to please a man.” (Id. ¶ 53.) Vape also “recognizes that modern
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`youth still navigate complex issues relating to sex, drugs, and peer pressure – just in different
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`forms from their 1950s counterparts.” (Id. ¶ 54.)
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`Defendants dispute Plaintiff’s characterization of Vape as a parody and assert that
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`Vape infringes their copyright in Grease by utilizing the music, plot, characters, settings, and
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`other elements from Grease. (Def. Answer at 13, ¶ 21.) After learning that Vape was scheduled
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`to be performed in New York City in August 2019, Defendants sent Plaintiff, and the theater
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`where Vape was scheduled to be performed, cease and desist letters on July 29, 2019. (SAC ¶¶
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`57-58.) Shortly after, the theater cancelled the scheduled performances. (Id. ¶ 60.) Despite
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`these cancellations, Sketchworks hopes to perform Vape in the future. (Id. ¶ 64.)
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`Defendants also assert that Plaintiff misappropriated Defendants’ trademark in the
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`registered mark “Grease,” and the name of Defendant Jim Jacobs, by using them without
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`permission in order “to commercially benefit” from their attached “popularity and goodwill.”
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`(Def. Answer at 14, ¶¶ 30-31.) At the beginning of the performance of Vape, Plaintiff displays
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`title and opening credits slides. (Pl. Answer ¶ 30.) One of the slides states, “Based on GREASE
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`by Jim Jacobs and Warren Casey.” (Id.) Plaintiff also describes Vape as “A live musical parody
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`of Grease!” in its advertising materials. (Id.) Defendants allege that these representations are
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`“likely to” lead consumers to believe that “Vape has been authored, approved, licensed, endorsed
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`or in some way affiliated with the Defendants.” (Def. Answer at 15, ¶ 34.) Defendants pursue
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`counterclaims for trademark infringement under the Lanham Act, 15 U.S.C. § 1125 et seq., and
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`violation of the right of privacy under sections 50 and 51 of the New York Civil Rights Law for
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`these alleged infringements.
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`A copy of the 1978 film of Grease and a video recording of a performance of
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`Vape are incorporated by reference into the pleadings, and copies of the works were provided to
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`the Court. (See Exhibits 2 and 3 to docket entry no. 64, Declaration of Jordan Greenberger
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`(“Greenberger Decl.”).)
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`DISCUSSION
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`Under Fed. R. Civ. P. 12(c), “a party is entitled to judgment on the pleadings only
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`if it has established that no material issue of fact remains to be resolved and that it is entitled to
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`judgment as a matter of law.” Zurich Ins. Co. v. Crowley Latin Am. Servs., LLC, No. 16-CV-
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`1861-JPO, 2016 WL 7377047, at *2 (S.D.N.Y. Dec. 20, 2016) (internal quotation and
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`modifications omitted). In deciding a motion brought under Rule 12(c), the Court employs “the
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`same plausibility standard that applies on a Rule 12(b)(6) motion” and assumes the factual
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`allegations of “all pleadings—including defendant’s counterclaims” to be true. Lombardo v. Dr.
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`Seuss Enters., L.P., 279 F. Supp. 3d 497, 505 (S.D.N.Y. 2017), aff’d 729 F. App’x 131 (2d Cir.
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`2018). As part of its evaluation, the Court “may consider documents attached to the complaint,
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`incorporated by reference into the complaint, or known to and relied on by the plaintiff in
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`bringing the suit.” Adjmi v. DLT Ent. Ltd., 97 F. Supp. 3d 512, 526 (S.D.N.Y. 2015). Here,
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`Plaintiff relied upon its work, Vape, and the film, Grease, in bringing this action for declaratory
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`relief, and the Court has reviewed and considered these works in reaching this decision.
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`Copyright Infringement
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`Plaintiff seeks a declaration that its play, Vape, does not infringe Defendants’
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`copyright in the work, Grease, because Vape is a parody of Grease and constitutes fair use of the
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`copyrightable elements of Grease. “Numerous courts in this district have resolved the issue of
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`fair use on a motion for judgment on the pleadings by conducting a side-by-side comparison of
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`the works at issue.” Lombardo, 279 F. Supp. 3d at 504 (collecting cases); see also Adjmi, 97 F.
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`Supp. 3d at 527 (“Courts in this Circuit have resolved motions to dismiss on fair use grounds in
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`this way: comparing the original work to an alleged parody, in light of applicable law.”).
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`Plaintiff and Defendants agree that the Court has authority to decide this issue at this procedural
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`juncture, and they concur that the 1978 film and the recording of the Vape performance are the
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`appropriate works for comparison.
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`The Copyright Act of 1976 furthers Congress’ constitutional responsibility to
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`“promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . .
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`the exclusive Right to their respective Writings. . . .” U.S. Const. art. I, § 8, cl. 8. The Copyright
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`Act not only protects “original creative work[s],” but also “derivative works,” defined as works
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`“based upon one or more preexisting works, such as a[n] . . . art reproduction, abridgement,
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`condensation, or any other form in which a work may be recast, transformed, or adapted.” Andy
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`Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 36 (2d Cir. 2021) (quoting 17
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`U.S.C § 101), cert. granted, 142 S. Ct. 1412 (Mar. 28, 2022) (No. 21-869). However, “a
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`copyright holder cannot prevent another person from making a ‘fair use’ of [its] copyrighted
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`material.” Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1196 (2021) (quoting 17 U.S.C. §
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`107). The fair use doctrine “seeks to strike a balance between an artist’s intellectual property
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`rights to the fruits of her own creative labor . . . , and ‘the ability of [other] authors, artists, and
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`the rest of us to express them – or ourselves by reference to the works of others.’” Goldsmith, 11
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`F.4th at 36 (quoting Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006)). Section 107 of the
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`Copyright Act “provides a non-exclusive list of four factors that courts are to consider when
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`evaluating whether the use of a copyrighted work is ‘fair.’” Id. at 36-37. The factors are:
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`(1) the purpose and character of the use, including whether such use is of a commercial
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`nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the copyrighted work
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`as a whole; and
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`(4) the effect of the use upon the potential market for or value of the copyrighted work.
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`17 U.S.C. § 107. (Westlaw P.L. through 117-116). The Court will address each factor in turn.
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`The Purpose and Character of Vape
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`The central inquiry of the first factor is “whether and to what extent the new work
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`is transformative,” or the extent to which the new work “merely supersedes the objects of the
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`original creation, or instead adds something new, with a further purpose or different character,
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`altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music,
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`Inc., 510 U.S. 569, 579 (1994) (internal quotations and citations omitted).
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`Section 107 of the 1976 Copyright Act identifies “[p]aradigmatic examples of
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`transformative uses,” including “criticism” and “comment.” Goldsmith, 11 F.4th at 37. The
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`Supreme Court has recognized that “parody has an obvious claim to transformative value”
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`because, “[l]ike less ostensibly humorous forms of criticism, it can provide social benefit, by
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`shedding light on an earlier work, and, in the process, creating a new one.” Campbell, 510 U.S.
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`at 579; see also Goldsmith, 11 F.4th at 37 (“[P]arody, which needs to mimic an original to make
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`its point, is routinely held transformative.” (internal quotation and citation omitted)). “The
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`‘threshold question when fair use is raised in defense of parody is whether a parodic character
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`may reasonably be perceived.’” Lombardo, 279 F. Supp. 3d at 505 (quoting Campbell, 510 U.S.
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`at 582).
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`Defendants argue that Vape does not comment on the substance of Grease, but
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`rather comments on society writ large, and therefore is not a parody entitled to protection under
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`the fair use doctrine. (Def. Mem. at 4-5.) Specifically, Defendants allege that the authors of
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`Vape used elements from Grease to communicate the authors’ “female perspective on
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`misogynistic, sexist and rape-culture elements” of “modern society” without having to deal with
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`the “drudgery of coming up with something new.” (Id. at 3-4.) Defendants assert that there is
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`“no justification or explanation” for Plaintiff’s use of Grease, in particular, to communicate their
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`critique of society writ large. (Id. at 5.)
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`After performing a careful review of the pleadings and the works at issue,2 the
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`Court finds Defendants’ characterization of Vape to be overly simplistic and incomplete for
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`multiple reasons.
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`First, Defendants overlook the manner in which Vape mocks various specific
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`elements of Grease, including absurdities in the plot line. For example, early in Vape, when the
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`play transitions from Danny and Sandy’s summer vacation at the beach to the beginning of the
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`school year, Frenchy explains to Sandy that Rydell High School is “the one school where
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`everybody randomly busts into choreographed song and dance, and we all look at least 30,”
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`poking fun at the more mature appearances of the actors in Grease and their characters’
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`propensity to break out into coordinated song and dance routines. (SAC ¶ 24; see also id. ¶ 43
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`(explaining how Sandy in Vape declares how nervous she is that she does not know the
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`choreographed dances “that literally everyone at this school knows”).) In the same scene, Vape
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`mocks how Grease provides no explanation for how Sandy, an out-of-towner who meets Danny
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`while travelling for the summer, ends up staying in town and attending his high school. (Id. ¶¶
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`24-25.) In Vape, the #PinkSquad asks Sandy the name of the boy she fell in love with over the
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`summer, noting, “You know[,] in the off chance that he’ll go to this supremely large high
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`school” (id. ¶ 25), and Frenchy notes that Sandy “just moved here and no one knows why!” (Id.
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`2
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`See Brown v. Netflix, Inc., 855 F. App’x 61, 63 (2d Cir. 2021) (“When, as here, the
`copyrighted and secondary works are incorporated by reference into the pleadings, ‘the
`works themselves supersede and control contrary descriptions of them, including any
`contrary allegations, conclusions or descriptions of the works contained in the
`pleadings.’”) (quotation omitted); see also Adjmi, 97 F. Supp. 3d at 516 (noting that,
`where the pleadings “present different conceptions” of the two works at issue, the “Court
`relies on the underlying source material” to present its account of the works).
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`¶ 24.) Another prime example of the critical approach Vape takes to Grease is the scene in
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`which Sandy allows Frenchy to pierce her ears at the girls’ sleepover. Although, in Grease,
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`Sandy supposedly cannot hear the girls singing and mocking her from behind the bathroom door,
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`in Vape, Sandy draws attention to their tactlessness, noting, “There was literally just hollow door
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`in between us. I could hear every word you were singing.” (Id. ¶ 35.)
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`Second, Vape changes certain elements of Grease, including the script and lyrics
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`to songs, in order to emphasize the misogynistic features of the original work. For example,
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`when Danny apologizes to Sandy in the movie, Grease, after he treats her poorly during their
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`reunion at Rydell High School, she forgives him and they continue their relationship by going
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`out to a restaurant with their friends and to the school dance together. (SAC ¶¶ 13-16;
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`Greenberger Decl., Ex. 3.) Vape capitalizes on Sandy’s decision to forgive a man who treated
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`her badly. In Vape, she also accepts Danny’s apology, but adds, “Lucky for you, Society has
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`taught me to give an unlimited amount of chances to undeserving men.” (SAC ¶ 39.) Perhaps
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`most crucially, Vape criticizes Grease’s “happy ending,” in which Sandy decides to change
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`herself and become a greaser in order to be in a relationship with Danny. Vape incorporates
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`sarcastic, new dialogue into the script to comment on Sandy’s decision. Sandy tells Frenchy, “I
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`want Danny back. Frenchy, I’m going to change everything about myself for him,” and Frenchy
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`replies sarcastically, “That’s so great to hear. You definitely won’t regret this later . . . [s]aid no
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`one ever . . . . Let’s go to my house for this totally unnecessary makeover.” (Id. ¶ 46.) After her
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`makeover, Sandy arrives at the last-day-of-school celebration in her greaser outfit and explains
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`that she has experienced a “sexual awakening while also abandoning [her] identity and values.”
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`(Id. ¶ 48.) There are numerous other instances in Vape in which alterations of Grease emphasize
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`and comment critically on the misogynistic tendencies of the original work. (See, e.g., id. ¶ 41
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`(When Danny decides to try sports to impress Sandy, as he does in Grease, the coach character in
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`Vape departs from Grease’s script and notes, “Sex with beautiful women is the primary reason
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`young men should participate in the athletics.”); id. ¶ 39 (altering Danny’s apology to Sandy to
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`say: “I’m not allowed to look vulnerable or like I care about women in front of my boys”); id.
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`¶ 38 (changing lyrics to song, “Greased Lightnin’,” to be “Why, this car is gonna be
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`misogynistic!”); Def. Answer at 11, ¶ 12 and Greenberger Exs. 2-3 (changing lyrics to song,
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`“Summer Nights” to “She was legal, but she looked preteen.”).)
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`Third, to the extent Defendants argue that Plaintiff cannot establish fair use
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`because it fails to provide a “justification” or “explanation” of how each departure taken from
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`Grease relates to Vape’s purpose of commenting on the underlying work, (see Def. Mem. at 5),
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`Defendants take too narrow a view of the law. See Lombardo, 279 F. Supp. 3d at 507 (“[T]he
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`copied work must be, at least in part, an object of the parody, otherwise there would be no need
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`to conjure up the original.”) (quotation omitted); Mattel, Inc. v. Pitt, 229 F. Supp. 2d 315, 322
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`(S.D.N.Y. 2002) (explaining that parody “must[,] at least in part[,] comment on the parodied
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`work in particular, and not solely consist of general social criticism.”); Cliffs Notes, Inc. v.
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`Bantam Doubleday Dell Publ’g Grp., Inc., 886 F.2d 490, 495-96 (2d Cir. 1989) (describing a
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`work as a parody “if, taken as a whole, it pokes fun at its subject”). Plaintiff admits that Vape
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`“recognizes that modern youth still navigate complex issues relating to sex, drugs, and peer
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`pressure . . . in different forms from their 1950s counterparts” and “explores whether modern
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`society has progressed at all by pointing to current systemic issues that still exist.” (SAC ¶ 54.)
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`However, as shown above, this is not a case in which the authors of Vape have taken elements
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`from Grease “for the sake of convenience, and then changed the lyrics [and script] to satirize a
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`subject having nothing to do with the original [work].” Abilene Music, Inc. v. Sony Music Ent.,
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`Inc., 320 F. Supp. 2d 84, 91 (S.D.N.Y. 2003). Nor is it merely a derivative update of Grease. To
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`the contrary, Vape relies on allusion to Grease to convey its central message about Grease’s
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`misogynistic story line. See id. at 91-92 (finding a new song that included a portion of the song
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`Wonderful World to be a parody of Wonderful World, noting that, although the “message of [the
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`new song] goes beyond simply parodying Wonderful World, that parody is an integral part of the
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`song’s take on the world because it highlights the contrast between the two worldviews, and
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`expresses the rapper’s belief in the realism of his own perspective”); Adjmi, 97 F. Supp. 3d at
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`530 (finding the plaintiff’s play to be a transformative use of the television show Three’s
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`Company because the work “conjures up Three’s Company by way of familiar character
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`elements, settings, and plot themes, and uses them to turn Three’s Company’s sunny 1970s Santa
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`Monica into an upside-down, dark version of itself. [Defendant] may not like that
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`transformation, but it is a transformation nonetheless.”). By juxtaposing familiar elements from
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`Grease, such as the main characters and the plot arc, with alterations to the script and song lyrics,
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`Plaintiff draws attention to the treatment and plight of the female characters in Grease and
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`comments on how misogynistic tendencies have both evolved since Grease was developed and
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`remain the same. See Lombardo, 279 F. Supp. 3d at 509 (“Through clever re-arrangement of the
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`original material, the Play attempts to depict the realities of the modern world in which we live”
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`and “lampoons [the original work] by highlighting the ridiculousness of the utopian society
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`depicted in the original work.”); cf. TCA Television Corp. v. McCollum, 839 F.3d 168, 182-83
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`(2d Cir. 2016) (finding subsequent work not transformative where the “only purpose served by
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`the extent of defendants’ taking is identically comedic to that of the original authors . . . . [T]here
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`is ‘nothing transformative’ about using an original work ‘in the manner it was made to be’
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`used.”) (citation omitted).
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`For these reasons, Defendants’ reliance on the Second Circuit Court of Appeals’
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`decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, misses the mark. 11
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`F.4th 26 (2d Cir. 2021). At issue in that decision was whether Andy Warhol’s Prince Series was
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`transformative of the underlying photograph of Prince on which the series was based. The court
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`found that the Prince Series was not transformative, noting that the “overarching purpose and
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`function of the two works at issue . . . [was] identical, not merely in the broad sense that they are
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`created as works of visual art, but also in the narrow but essential sense that they are portraits of
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`the same person[,]” and cautioned that, “where a secondary work does not obviously comment
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`on or relate back to the original or use the original for a purpose other than that for which it was
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`created, the bare assertion of a ‘higher or different artistic use,’ is insufficient to render a work
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`transformative.” 11 F.4th at 41-43. Here, in contrast, Vape, when considered holistically,
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`constitutes a parody of Grease, as it “comment[s] on [and] relate[s] back to the original[,]” and
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`“comprise[s] something more than the imposition of another artist’s style on the primary work.”
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`Id. at 41-42. Indeed, the Warhol Foundation Court reaffirmed the longstanding legal principle
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`that “parody, which ‘needs to mimic an original to make its point,’ is routinely held
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`transformative.” Id. at 37 (quoting Campbell, 510 U.S. at 580-81).
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`Because the Court has determined that Vape is a parody of Grease, and is thus
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`transformative in nature, “it is of little significance that the use is also of a commercial nature.”
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`Lombardo, 279 F. Supp. 3d at 510; see also Google, 141 S. Ct. at 1204 (“[E]ven though
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`Google’s use was a commercial endeavor . . . that is not dispositive of the first factor,
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`particularly in light of the inherently transformative role that the reimplementation played in the
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`new [work].”). Thus, the first factor weighs in favor of finding that Vape makes fair use of
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`Grease.
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`Nature of the Copyrighted Work
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`There is no dispute that Grease is a work of creative expression and thus “falls
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`within the core of the copyright’s protective purposes.” Campbell, 510 U.S. at 586. However,
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`while this factor favors Defendants, the Court declines to afford much weight to it because
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`“parodies almost invariably copy publicly known, expressive works” and thus, in parody cases,
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`this factor is “not much help” in determining whether the new work constitutes fair use. Id.; see
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`also Lombardo, 279 F. Supp. 3d at 511 (“[A]lthough this factor favors defendant because Grinch
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`is a creative work, I decline to give much weight to this factor in light of the Play’s parodic
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`nature.”).
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`Amount and Substantiality of the Portion Used
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`The third factor in the fair use analysis is “something of a sliding scale: the larger
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`volume (or the greater importance) of the original taken, the less likely the taking will qualify as
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`a fair use.” Adjmi, 97 F. Supp. 3d at 533. With respect to parodies, the Court’s “attention turns
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`to the persuasiveness of a parodist’s justification for the particular copying done.” Campbell,
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`510 U.S. at 586. Because “[p]arody’s humor, or in any event its comment, necessarily springs
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`from recognizable allusion to its object through distorted imitation[,]” “quotation of the
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`original’s most distinctive or memorable features, which the parodist can be sure the audience
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`will know,” cannot be avoided. Id. at 588. The inquiry “seeks to draw a line between taking
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`enough to evoke the original and excessive appropriation.” Adjmi, 97 F. Supp. 3d at 533.
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`Defendants argue that Vape’s taking is “excessive” because Vape takes many of
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`the creative elements, including the setting, music, plot arc, and characters from Grease, which
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`Defendants argue amounts to the “heart” of the original work. (Def. Mem. at 14-15.) However,
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`as previously explained, “[c]opying does not become excessive in relation to parodic purpose
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`merely because the portion taken was the original’s heart.” Campbell, 510 U.S. at 588. While
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`the Court recognizes that Vape took substantial elements from Grease, the Court finds that the
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`taking was not excessive because the use of those elements was necessary for Vape to achieve its
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`parodic purpose. The authors of Vape would not have been able to communicate their critical
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`view of Grease’s happy ending, and the manner in which Sandy “completely changes who she is
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`in order to please a man,” without incorporating Sandy and Danny’s relationship and their
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`overall plot arc into the new work. (SAC ¶ 53.) Nor would the authors of Vape have been able
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`to communicate their critical views on the plot absurdities of Grease, including the happenstance
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`of Sandy attending Danny’s high school or the characters spontaneously breaking into
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`choreographed song and dance, if Vape were not to allude to the setting, plot line, and music
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`from the original work. (Id. ¶ 55); see also Lombardo, 279 F. Supp. 3d at 511-12 (finding Play’s
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`use of underlying work not excessive even though it “incorporate[d] substantial elements of [the
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`underlying work’s] characters, setting, plot, and style” because the Play “engage[d] in . . .
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`‘distorted imitation’ in order to mock the original.”)
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`Defendants also take issue with Plaintiff’s copying of what they characterize as
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`“minor details” from Grease—such as the “Thunder Road car race” and the “pajama party”—and
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`the characters’ “unique and creative mannerisms” that they allege were “copied without any
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`parodic purpose.” (Def. Mem. at 15.) The Court disagrees. First, as previously explained, a
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`parody depends on recognizable allusion to the original work, and notable character traits and
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`scenes from the original plot can hardly be considered “minor.” Second, Plaintiff made
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`significant alterations to the script in order to portray these familiar elements from the original
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`work in a new, and critical, light. (See, e.g., SAC ¶ 46 (describing reframing of characters’
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`reaction to the Thunder Road car race, including Frenchy’s remark, “Sandy, how’d you like that
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`extremely dangerous dick-measuring contest?” and Sandy’s reply, “Oh Frenchy, it was
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`exhilarating!”).)
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`Vape also adds new features that did not exist in the film. For example, th