Point Break parody play is copyrightable, says Second Circuit
Works considered to be protected by the fair use doctrine under US law are copyrightable, the US Court of Appeals for the Second Circuit has ruled.
The second circuit was ruling on a challenge filed by New York-based playwright Eve Hars that a play called “Point Break Live”, a parody of the 1991 film “Point Break”, should not be protected by copyrightable.
But in a decision handed down on Friday, October 30, the second circuit rejected Hars’s claim that the fair use doctrine is only be invoked when defending a lawsuit and not when asserting a claim.
The dispute centres on the play written by Jaime Keeling which was first performed in 2003.
The play parallels the central story of the 1991 film, which stars Keanu Reeves and Patrick Swayze, by following an undercover police officer entering into a criminal gang.
However, unlike the original film, the play consists of jokes and theatrical devices that parody the original.
One such instance is a scene where an audience member is selected to play the police officer and read lines that are presented on a series of cue cards. The intent is to satirise Reeves’s “stilted” performance in the original film.
Between October and December 2007 Hars contacted Keeling about producing her own version of the play.
An agreement was reached but Hars then consulted with an intellectual property lawyer who said the work was not protected by copyright.
Hars then ended the agreement and produced the play at the New Rock Theater in New York.
In 2010, Keeling sued Hars at the US District Court for the Southern District of New York. The court awarded $250,000 in Keeling’s favour in 2013.
Hars appealed against the judgement. In her appeal she agreed that the work was protected by fair use, but said that the play was an unauthorised derivative work and was therefore exempt from copyright protection.
But the second circuit said Hars’s argument was “inconsistent” with existing US law.
The law only precludes works from protection when the derivative work has used original material “unlawfully”, said Judge José Cabran es, who wrote the final ruling.
“It is not the invocation of fair use that provides the work copyright protection, and perhaps thinking so has created some confusion on the part of the defendant. It is the originality of the derivative work that makes it protectable, and fair use serves only to render lawful the derivative work,” he added.
