As a hashish mental property litigator, a part of my job is to assist shoppers make cost-benefit and danger analyses. My colleagues and I’ve written a number of posts in regards to the protection of “parody” in hashish mental property litigation, and why it’s a really particular protection that individuals are inclined to overstretch usually. Whereas that is still true, it’s solely truthful to additionally write about circumstances the place it does work – like on this week’s resolution by a New York courtroom to deem a sketch comedy group’s theater manufacturing titled “Vape” a good use of the well-known “Grease” musical.
The events’ arguments
Plaintiff Sketchworks Industrial Power Comedy, Inc. filed a Grievance within the Southern District of New York to hunt a declaratory judgment that Vape doesn’t infringe Defendants James Jacobs and Warren Casey’s copyright in Grease. (FYI, James Jacobs and Warren Casey are the co-authors of Grease.) Sketchworks owns its personal copyright in Vape. Vape depicts the identical characters and options parts of Grease’s well-known songs. However, Sketchworks claims Vape is a parody of Grease:
[It] “pokes enjoyable at numerous absurdities in Grease”, and “makes use of millennial slang, in style tradition, a contemporary lens, and exaggeration to remark upon the plot, construction, points and themes of Grease and to criticize its misogynistic and sexist components.” In so doing, Vape, which was written and directed by ladies, “reexamines Grease from a feminine perspective within the #MeToo period,” and “exposes how the ‘humor’ and rape-cultured components of Grease haven’t aged nicely” by, for instance, “immediately criticiz[ing] Grease’s ‘comfortable ending,’ the place a girl fully modifications who she is so as to please a person.” Vape additionally “acknowledges that trendy youth nonetheless navigate advanced points regarding intercourse, medicine, and peer stress – simply in several varieties from their Fifties counterparts.”(Citations omitted).
Defendants argued Vape doesn’t represent a parody as a result of it makes use of the identical music, plot, characters, settings, and different components of Grease, and that Sketchworks additionally misappropriated Defendants’ trademark in Grease. After they realized Vape was scheduled to be carried out in New York Metropolis in August 2019, Defendants despatched Sketchworks a stop and desist letter and Sketchworks cancelled the scheduled performances.
The courtroom’s evaluation
On one hand, it’s nicely settled underneath case regulation that the Copyright Act not solely protects “authentic inventive work[s],” but additionally “by-product works,” outlined as works “primarily based upon a number of preexisting works, reminiscent of a[n] . . . artwork replica, abridgement, condensation, or some other kind during which a piece could also be recast, remodeled, or tailored.” Nonetheless, a copyright holder can’t stop one other individual from making a truthful use of its copyrighted materials. There are 4 elements to think about when evaluating whether or not a use is truthful:
- the aim and character of the use, together with whether or not such use is of a industrial nature or is for nonprofit instructional functions;
- the character of the copyrighted work;
- the quantity and substantiality of the portion utilized in relation to the copyrighted work as an entire; and
- the impact of the use upon the potential marketplace for or worth of the copyrighted work.
Underneath the primary issue, the Courtroom discovered that Vape sufficiently modified sure components of Grease, together with the script and lyrics to songs, so as to emphasize misogynistic options of the unique work:
[T]his just isn’t a case during which the authors of Vape have taken components from Grease “for the sake of comfort, after which modified the lyrics [and script] to satirize a topic having nothing to do with the unique [work]. Neither is it merely a by-product replace of Grease. On the contrary, Vape depends on allusion to Grease to convey its central message about Grease’s misogynistic story line. (Citations omitted).
Underneath the second issue, the Courtroom acknowledged Grease falls inside the core of the Copyright Act’s safety, however declined to afford a lot weight to it as a result of “parodies virtually invariably copy publicly recognized, expressive works’ and thus, in parody circumstances, this issue is ‘not a lot assist’ in figuring out whether or not the brand new work constitutes truthful use.”
Underneath the third issue, the Courtroom discovered that Vape’s “taking” of components from Grease was not extreme as a result of they have been crucial for Vape to attain its parodic objective. For instance, Vape wouldn’t have been in a position to talk its critique of Grease’s “comfortable ending,” (Sandy altering who she is to please Danny) with out incorporating their total plot arc. The Courtroom additionally famous that Vape does add new options that didn’t exist in Grease.
Underneath the fourth issue, the Courtroom thought of whether or not Vape would doubtlessly take away demand from Grease by serving as “a market substitute.” Underneath that evaluation, it discovered the potential hurt to Grease’s market worth to be minimal as a result of Vape couldn’t fairly be seen as a by-product work – like a sequel or up to date remake – as a result of it mocks and critiques Grease.
In the end, the Courtroom deemed Vape a parody and truthful use of Grease, and Sketchworks was moreover awarded its attorneys’ charges in prosecution of the case.
Conclusion
To be clear, the Courtroom’s ruling on this case just isn’t a name for hashish firms or anybody else to pursue parodies of well-known works. It’s only a reminder that in very particular circumstances, the parody protection may be thought of alive and nicely.
For latest articles particular to hashish mental property litigation the place the parody protection does not work take a look at the next: