Keeling v. Hars, 809 F.3d 43

Background

Jaime Keeling wrote "Point Break Live!" (PBL), a stage-parody adaptation of the film Point Break that uses substantial dialogue and plot elements from the movie but transforms them with jokes, audience participation, props, and staging.
Keeling had no license from the Point Break rightsholders; she registered a copyright in PBL on January 4, 2008.
Eve Hars (owner of New Rock Theater) produced PBL under a production agreement, later continued staging it without paying Keeling after disputes over rights and renegotiation.
Keeling sued Hars, New Rock, and an investor for copyright infringement and related claims; defendants counterclaimed that Keeling’s PBL copyright was invalid as an unauthorized derivative work.
After district-court rulings denying summary judgment, a jury found PBL to be "fair use in the way of a parody," that Keeling owned the PBL copyright, and that defendants infringed; judgment for $250,000 was entered.
On appeal Hars argued (1) an unauthorized derivative work can never obtain independent copyright even if a fair use, (2) Keeling’s contributions (stage devices, directions) were non-copyrightable and insufficient, and (3) the district court’s jury instructions were defective.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an unauthorized work that qualifies as fair use can receive independent copyright protection	Keeling: A work that lawfully employs preexisting copyrighted material by fair use may obtain copyright in its original contributions under 17 U.S.C. § 103	Hars: An unauthorized derivative cannot be a copyright holder; fair use can be a defense (shield) but not a sword to confer copyright	Court: Affirmed — where a derivative work’s use of preexisting material is lawful fair use and the work adds sufficient originality, the author may claim copyright protection for original contributions under § 103
Whether selection/arrangement of non-copyrightable elements can supply sufficient originality	Keeling: The creative selection, coordination, and arrangement of common theatrical devices yields the minimal creativity required for copyright	Hars: Keeling’s additions are trivial stage directions/devices (uncopyrightable) and cannot support a copyright	Court: Affirmed — compilations or arrangements of unprotectable elements can be copyrighted if they show the minimal degree of originality (Feist standard)
Adequacy of jury instruction on originality (failure to give a discrete originality charge)	Keeling: Jury charge adequately explained that a fair-use parody must be "new" and not merely a copy, conveying sufficient guidance on originality	Hars: District court failed to instruct that originality is a constitutional requirement and effectively equated fair use with automatic copyright	Court: No plain error — the charge, taken as a whole, covered transformative purpose and originality sufficiently for the jury to decide
Adequacy of jury instruction on fair-use statutory factors (failure to enumerate all four factors)	Keeling: Emphasis on transformative purpose (factor one) was appropriate for parody; other factors are less significant	Hars: Court should have explicitly stated all four § 107 factors	Court: No plain error — district court appropriately emphasized transformative inquiry; omission did not prejudice Hars and would not have changed outcome

Key Cases Cited

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (parody can qualify as fair use; transformative purpose is central)
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (compilations of unprotectable elements may be copyrighted if they possess minimal creativity)
Harper & Row v. Nation Enters., 471 U.S. 539 (1985) (originality and context of use relevant to fair use analysis)
Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980) (derivative status alone does not preclude copyrightability)
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (transformative use creates new information/aesthetics; pertinent to originality/ fair use)
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (entire use of original work can be fair use if tailored to a transformative purpose)
Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982) (requires some substantial originality; pervasiveness of source material does not defeat originality if minimal creativity present)
On Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. 2001) (the heart of fair-use inquiry is transformative character)
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) (discussion of fair use factors in context of parody)