Keeling v. New Rock Theater Productions, LLC et al

Filing 16

OPINION. This case involves a claim for copyright infringement by plaintiff, Jaime Keeling, against defendants, New Rock Theater Productions ("New Rock") and Eve Hars and Ethan Garber. Defendants have moved to dismiss, arguing that Keeling& #039;s work, as a parody, cannot be copyrighted. Defendants' motion is denied. Keeling's derivative work is eligible for copyright protection and therefore defendants' motion to dismiss is denied. (Signed by Judge Thomas P. Griesa on 5/17/11) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JAIME KEELING,
:
:
Plaintiff,
:
:
– against –
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NEW ROCK THEATER PRODUCTIONS,
:
LLC, EVE HARS, and ETHAN GARBER,
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Defendants.
:
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10 Civ. 9345 (TPG)
OPINION

This case involves a claim for copyright infringement by plaintiff,
Jaime Keeling, against defendants, New Rock Theater Productions (“New
Rock”) and Eve Hars and Ethan Garber. Defendants have moved to
dismiss, arguing that Keeling’s work, as a parody, cannot be copyrighted.
Defendants’ motion is denied.
FACTS
These facts are taken from Keeling’s complaint and, for the
purposes of this motion, are assumed to be true.
Keeling is the author and owner of copyrights in the script for
“Point Break LIVE!”, a stage play that is a parody of “Point Break,” a
popular motion picture released in 1991. Keeling does not have a
copyright or license with regard to the original motion picture. Keeling’s
copyrights are for additions and modifications she made to “Point Break”
in parodying it in her script for “Point Break LIVE!”. Keeling did not

obtain permission from the copyright holders of “Point Break” before
registering her own copyrights of her parody.
In 2007, Keeling negotiated a production agreement with Hars, the
owner of New Rock, to stage a two-month run of performances of “Point
Break LIVE!” in Los Angeles. Although the play was successful, Hars did
not renew the production agreement with Keeling. Instead, Hars and
New Rock allegedly repudiated the original agreement and took the
position the Keeling had no rights to her script. These actions by Hars
and New Rock were allegedly instigated by Garber, a New Rock investor.
Since early 2008, New Rock has continued to stage the play in Los
Angeles and elsewhere without Keeling’s permission and without
compensating for the use of her script.
DISCUSSION
In their motion to dismiss, defendants argue that Keeling’s parody,
as a derivative work, cannot be protected by copyright without the
permission of the original copyright owner. This contention has no basis
in law.
Creators of original works have many rights and remedies against
those who infringe their work. However, their rights are limited when
someone takes the original work and derives something new and
different from it. This limitation on rights is called “fair use.” 17 U.S.C.
§ 107. A parody is fair use under § 107. Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 579 (1994).

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So long as the creator of the derivative work stays within the
bounds of fair use and adds sufficient originality, she may also obtain a
copyright. 17 U.S.C. § 103(a); see also Durham Industries, Inc. v. Tomy
Corp., 630 F.2d 905, 908-09 (2d Cir. 1980). The copyright for a
derivative work is more limited than that for an original work, however.
Copyright protection for a derivative work “extends only to the material
contributed by the author of such work, as distinguished from the
preexisting material employed in the work.” Id. at § 103(b); see also
Earth Flag Ltd. v. Alamo Flag Co., 153 F. Supp. 2d 349, 353 (S.D.N.Y.
2001) (“Although derivative works are protectible, copyright protection
extends only to the non-trivial, original contributions of the derivative
work’s author.”). Although the original creator may create a derivative of
her original work, § 106(2), nowhere is it stated that the creator of a
derivative work cannot copyright the new portions of that derivative work
without permission from the creator of the original work.
In fact, creators of derivative works often register their own
copyrights--without permission from the holder of the original copyright-and then sue those who create later derivative works from the same
original but whose later derivative works are alleged to be too similar to
the earlier derivative work and thus infringe on the earlier derivative
work. See, e.g., Canal+ Image UK Ltd. v. Lutvak, No. 10 Civ. 1536 (RJH),
2011 WL 1158439 (S.D.N.Y. March 29, 2011); National Broadcasting Co.,
Inc. v. Sonneborn, 630 F. Supp. 524 (D.Conn. 1985). Nowhere in these

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cases it is ever questioned whether the plaintiff--creator of the earlier
derivative work--had obtained permission from the original copyright
holder before registering her own copyright in the derivative work.
Defendants, in their motion to dismiss, cite to several cases in
support of the contention that derivative works cannot receive copyright
protection without permission of the original work’s copyright holder.
None of the cited cases says any such thing. In fact, none of the cited
cases even involves the issue of the creator of a derivative work
attempting to enforce her copyright. Instead, they all involve claims by
original copyright holders alleging that the derivative work at issue is not
fair use. These cases are uniformly unhelpful to the question at hand.
DISCUSSION
Keeling’s derivative work is eligible for copyright protection and
therefore defendants’ motion to dismiss is denied.

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Dated: New York, New York
May 17,2011

Thomas P. Griesa
U.S.D.J.

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