Can the Creator of an Unauthorized “Fair Use” Work Claim Copyright Protection?

ObamaaaaaBy Chike Eze

The Copyright Act balances granting exclusive rights to copyright owners on the one hand, and limiting those rights through several exceptions, including “fair use,” on the other. A creator of an unauthorized derivative work may escape a copyright infringement claim by successfully asserting a defense of “fair use.” However, the question is whether the creator may also claim copyright protection for the unauthorized derivative work.

The Second Circuit Court of Appeals answered this question in the affirmative. In Keeling v. Hars, the Second Circuit Court interpreted Section 103 of the Copyright Act to determine whether an unauthorized work, within the bounds of fair use, may itself be protected by copyright. The Keeling court held that copyright law provides that an unauthorized but lawful “fair use work may itself merit copyright protection.”

Plaintiff Jaime Keeling created Point Break Live (“PBL”), a parody stage adaptation of the 1991 Hollywood action movie Point Break. The PBL parody parallels the characters and plot from the movie and relies heavily on the dialogue in Point Break. However, Keeling added “jokes, props, exaggerated staging and humorous theatrical devices to transform the dramatic plot and dialog of [Point Break] into an irreverent, interactive theatrical experience.” Keeling does not own a copyright in the Point Break movie.

In 2007, Keeling executed a production agreement with defendant, Eve Hars, who owns the production company New Rock Theatre Productions, LLC (“New Rock”). According to the agreement, New Rock would stage a two-month production of PBL. Subsequently, Hars came to believe that Keeling did not legally own rights to PBL and sought to renegotiate the agreement to avoid payment for future productions of PBL. Keeling refused and registered a copyright in PBL without first obtaining permission from the copyright holders of Point Break. The PBL copyright became effective on January 4, 2008. Hars continued to produce PBL for four years “without payment to or authorization from Keeling.”

In 2010, Keeling brought suit against Hars and other defendants in the U.S. District Court for the Southern District of New York, claiming, inter alia, copyright infringement. Defendants moved for summary judgment arguing that “PBL, an unauthorized work, was not entitled to copyright protection as a matter of law.” The District Court dismissed the motion, ruling that “a parody that makes ‘fair use’ of another copyrighted work may contain sufficient originality to merit copyright protection itself.” In December 2012, the case proceeded to a jury, which returned a verdict in Keeling’s favor. The jury awarded Keeling $250,000, finding that Keeling’s PBL parody was fair use, that Keeling was the owner of the copyright in PBL, and that Hars and other defendants infringed on Keeling’s copyright. Hars appealed the District Court’s ruling to the Second Circuit, challenging the denial of her pre-trial motion for summary judgment and the jury award.

The primary issue on appeal was whether Keeling’s parody was copyrightable. The Second Circuit found that the Copyright Act provides copyright protection to any lawful derivative work. The court further provided that because the right to create derivative works is independent from other Section 106 exclusive rights, the unauthorized creation of such works does not automatically bar copyright protection. Specifically, the unauthorized derivative work deserves copyright protection because the originality of the derivative work makes it protectable, and fair use makes that protection lawful. The court reasoned that its interpretation of the copyright statute is consistent with the general policy of fair use to promote development in arts and science (citing Campbell v. Acuff-Rose, 510 U.S. 569 (1994), another case that dealt with a song parody as a form of “fair use”).

In affirming the District Court’s holding, the Second Circuit correctly interpreted the copyright statute as providing that an unauthorized but lawful fair use work employing preexisting copyrighted material may itself merit copyright protection.

Image source: TC Attorney

(Click here for a discussion on the copyright and fair use issues related to the Obama image)

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