Keeling v. New Rock Theater Productions, LLC et al

Filing 132

OPINION re: 120 MOTION to Stay re: 108 Memorandum & Opinion filed by Eve Hars. The court concludes, therefore, that Hars' likelihood of success on appeal is very small. Accordingly, given the court, the public, and the parties' intere st in bringing this litigation to its ultimate conclusion, as well as Keeling's legitimate interest in vindicating her copyright, Hars' motion to stay enforcement of the permanent injunction is denied. (Signed by Judge Thomas P. Griesa on 3/11/2013) (mro)

USDCSDNY

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DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELBCfRONlCALLY FILED
OOC#:_~---

DATE. t1LED:

t:'-th \\, 1ftg::

JAIME KEELING,
Plaintiff,
10 Civ. 9345

v.

OPINION

NEW ROCK THEATER PRODUCTIONS,
LLC, EVE HARS, and ETHAN GARBER,
Defendants.

Ibis is a copyright dispute between plaintiff Jaime Keelmg and defendants Eve Hars,
Ethan Garber, and their production company, New Rock Theater Productions, LLC. The
work at issue is a theater production called Point Break LIVE!
A jury trial was concluded in this case on December 7,2012. The jury found in
Keeling's favor, and concluded that defendants infringed

K(~eling's

copyright in the work.

'I'he jury also found, as a prerequisite to its finding of infringement, that Point Break LIVE!
made fair use of the film Point Break. OnJanuary 10,201:3, the court permanently
enjoined defendants from staging additional infringing performances of the work.
Hars now moves to stay the enforcement of that injunc1jon pending her appeal to the
Second Circuit Court of Appeals. The motion is denied. 1

I

It should be mentioned that, though Hars is correct that her request for additional time to oppose plaintiffs motion
for a permanent injunction was never ofiicially filed due to some confusion regarding her representation. the court
nonetheless did receive and review it. And, per Hars' request, the court considered the arguments she presented in

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Whether to stay enforcement of an injunction pending appeal is left to the discretion
of the court. It is the movant's - Hal's' - burden, however, to demonstrate that the
circumstances justify dIe court's exercising this discretion to grant a stay. Nken v. Holder,
556 U.S. 418,434 (2009).

In determining wheilier ilie movant has met dlls burden, ilie court considers "0)
wheilier ilie stay applicant has made a strong showing iliat he is likely to succeed on ilie
merits; (2) wheilier ilie applicant will be irreparably il1jured absent a stay; (3) whether
issuance of dle stay will substantially injure dIe oilier parties interested in the proceeding;
and (4) where the public interest lies." S.E.C. v. Citigroup Global Markets Inc., 673 F.3d
158, 162 (2d Cif. 2012).

In iliis case, the court is cognizant of dle fact that ilie permanent injunction may cause
significant hardship for Hars and ilie many oilier individuals employed by productions of

Point Break LIVE!. This, combined wiili Keeling's apparent lack of interest in putting on
productions of Point Break LIVE! herself - except as

expr,~ssed

in her opposition to iliis

motion - lead ilie court to conclude that, all iliings being equal, ilie public interest would
be better served by granting a stay. It seems clear iliat Hars would be more greatly harmed
by an erroneous decision by iliis court to deny her ilie stay than Keeling would be by an
erroneous decision to grant it.

that:md other letters in opposition to plaintiffs motion. The court granted plaintiff's motion, not because it never
receIved Hars' opposition and request for additional time, but for the same substantive reason it now denies the
motion to stay enforcement of that injunction.
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Nonetheless, however, the importance of these considerations is conditioned upon
Hars' likelihood of success on appeal, a possibility that the court regards as extremely
remote.
The essence of Hars' argument on appeal will, she says, be the following. Though she
agrees that a work of parody may be entided to copyright protection, that protection, she
points out, only extends to the original contributions of the parodist. But Keeling's script,
she contends, consists only of dialogue original to the film Point Break combined with such
non-copyrightable elements such as stage direction and theatrical devices. Thus, she
argues, there is no residue of copyrightable material in Point Break LIVE!
Hars' legal argument is correct, as far as it goes. But Hal'S errs in her assessment that

Point Break LIVE/has no copyrightable content. Her asse;sment is that, because it
consists only of un-protectable elements the total work itself cannot be copyrightable. But
this overlooks the fact that copyright law protects not just th,~ elements themselves, but the
creative decisions made by an author in choosing how to

ar~ange

even un-protectable

elements.
The compilation author typically chooses which facti to include, in what
order to place them, and how to arrange the collected data so that they may
be used effectively by readers. These choices as to selection and
arrangement, so long as they are made independent1y by the compiler and
entail a minimal degree of creativity, are sufficiendy original that Congress
may protect such compilations through the copyright laws.
Feist Publ'ns, Inc. v. Rural Tel. Servo Co., Inc., 499 U.S. 340, 348 (1991). It is worth
noting that, in the Feist decision, the court made clear that even a telephone directory

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could be copyrightable if the un-protectable factual elements were arranged "vith a
"minimal degree" of creativity. Thus, regardless of whether the Point Break LIVE! script
is, in fact, exclusively composed of un-protectable elements, Keeling's creative contribution,
and thus her copyright, is in "the original way in which the author has 'selected,
coordinated, and arranged' the elements of his or her work." Knitwaves, Inc. v. Lollytogs
Ltd., 71 F.3d 996, 1004 (2d Cir. 1995).
It is therefore well established in this Circuit that Keeling's script, even if it does
consist only of a creative arrangement of un-protectable elements, is entitled to copyright
protection.
Hars also suggests that there is no case in this Circuit in which fair use has been used
as a "sword" instead of a "shield." And therefore, she contends, this case presents serious
legal issues that the Court of Appeals might resolve in her favor. The court agrees that
there is no such case, but it does not follow from this that the legal principle at issue is
undecided and requires further, serious deliberation by the Court of Appeals. That an
author may create a parody of another work and then enforce her copyright in dlat work
against others follows straightfonvardly from the text of the copyright act. The concept of
"fair use" is a legal principle employed to determine the extent and manner in which a
work is permitted to copy from anodler. 17 U.S.c. § 107. A work that makes fair use of
another is, therefore, a derivative work. 17 U.S.c. § 101. The original material added to a
derivative work is unambiguously entitled to copyright protection, so long at tlle material it
reuses is not reused unlawfully (e.g., if that reuse counts as a fair use). 17 U.S.c. § 103.
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And again, in this case, Keeling's work contains, at the very least, a creative arrangement of
un-protectable elements, an arrangement which itself constitutes a creative contribution
entitled to copyright protection. Knitwaves, Inc., 71 F.3d at 1004.
The court concludes, therefore, that Hars' likelihood of success on appeal is very
small. Accordingly, given the court, the public, and the parties' interest in bringing this
litigation to its ultimate conclusion, as well as Keeling's legitimate interest in vindicating her
copyright, Hars' motion to stay enforcement of the permanent injunction is denied.

So ordered.
Dated: New York, New York
March 11, 2013

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--~~~--~~~~----~----Thomas P. Griesa
United States DistrictJudge

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