Breaking point: is a copy of a parody infringing?

If you've ever seen the 1991 film Point Break you will know that Keanu Reeve's portrayal of an undercover federal agent, who poses as a surfer to bring a gang of surfing bank robbers to justice, is somewhat suspect. "Over the top", "stilted" and "clichéd" are some of the more polite comments about Reeves' portrayal of the rookie agent.  In fact some people think his performance is just hilarious. It was so funny, in 2007 playwright Jamie Keeling adapted the movie to produce her own irreverent live theatrical version, where a random member of the audience is selected to read Reeves' lines from cue cards. This was turned into a successful theatrical show Point Break Live! but then The Hollywood Reporter tells us, the production company behind the live version stopped paying Keeling, did its own version, and producer Eve Hars took the position that that Keeling had no right to her script since it was based on the film - and she had no permission to use the film script. So we now have a parody of a parody of a film. 

Keeling felt her work should be protected against an infringing copy, and in December 2012 a federal jury returned a $250,000 verdict in favour of Keeling.  The question posed to the 2nd Circuit Court of Appeals was whether  a parody, which has used another work (the 'source work') under the U.S. doctrine of fair use, is entitled to copyright protection - here against work which must also be a parody. 

The 2nd Circuit noted that Keeling used the 1991 film as source material and added "jokes, props, exaggerated staging, and humorous theatrical devices to transform the dramatic plot and dialogue of the film into an irreverent, interactive theatrical experience. For example, in Keeling’s  parody, massive waves in the film are replaced by squirt guns and a death‐defying scene in which Reeves’s blindfolded character must pick up bricks in a swimming pool is reduced to action in a children's paddling pool." And to be clear, no one was arguing that Keeling's use of Point Break wasn't fair use - BUT - could she use the fair‐use principle "to establish an affirmative claim against defendants for unauthorized use of her parody".

"Without any possibility of copyright protection against infringement for her original fair-use parody, playwrights like Keeling might be dissuaded from creating at all," Circuit Judge Jose A. Cabranes wrote on behalf of a three-judge panel.

Judge Cabranes was of the opinion that derivative works are entitled to copyright protection, separate from the copyright to source work: "It is not the invocation of fair use that provides the work copyright protection ....... It is the originality of the derivative work that makes it protectable, and fair use serves only to render lawful the derivative work, such that it may acquire — as would other lawful derivative works — such protection."

The defendants also advanced the argument that if Keeling's contributions consisted solely of non-copyrightable elements like stage directions and theatrical devices, her work couldn't support a copyright.  Again the court found for Keeling with the court saying that as with a telephone directory "creative choices made in selecting and arranging even un‐copyrightable elements" are protected by law. The appellate court upheld the award of $250,000.

Separate casts on each coast  of the USA perform weekly Breaking Point Live! shows in Los Angeles, monthly in San Francisco and sporadic shows in Washington, Boston, Philadelphia, San Diego, Chicago, Detroit, Cleveland and elsewhere.

http://www.cnbc.com/2015/10/30/the-associated-press-appeals-court-rules-in-favor-of-point-break-parody-creator.html