13‐694‐cv
Keeling v. Hars
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2014
No. 13‐694‐cv
JAIME KEELING,
Plaintiff‐Counter‐Defendant‐Appellee,
v.
EVE HARS,
Defendant‐Appellant,
NEW ROCK THEATER PRODUCTIONS, LLC, A NEW YORK LIMITED
LIABILITY COMPANY,
Defendant‐Counter‐Claimant,
ETHAN GARBER,
Defendant.*
Appeal from the United States District Court for the
Southern District of New York
No. 1:10‐cv‐9345—Thomas P. Griesa, Judge
The Clerk of Court is directed to amend the official caption in this case
*
to conform with the above.
SUBMITTED: JUNE 26, 2015
DECIDED: OCTOBER 30, 2015
Before: CABRANES, LIVINGSTON, and DRONEY, Circuit Judges.
The primary question presented is whether an unauthorized
work that makes “fair use” of its source material may itself be
protected by copyright.
We hold, for substantially the reasons stated by the United
States District Court for the Southern District of New York (Thomas
P. Griesa, Judge), that, if the creator of an unauthorized work stays
within the bounds of fair use and adds sufficient originality, she
may claim protection under the Copyright Act, 17 U.S.C. § 103, for
her original contributions. We also reject defendant’s challenges to
the District Court’s jury charge. The District Court’s
January 11, 2013 judgment is therefore AFFIRMED.
STEVEN PARADISE, Vinson & Elkins LLP,
New York, NY, for Plaintiff‐Counter‐
Defendant‐Appellee.
EVE HARS, pro se, Los Angeles, CA, for
Defendant‐Appellant.
2
JOSÉ A. CABRANES, Circuit Judge:
The primary question presented is whether an unauthorized
work that makes “fair use” of its source material may itself be
protected by copyright.
We hold, for substantially the reasons stated by the United
States District Court for the Southern District of New York (Thomas
P. Griesa, Judge), that, if the creator of an unauthorized work stays
within the bounds of fair use and adds sufficient originality, she
may claim protection under the Copyright Act, 17 U.S.C. § 103, for
her original contributions. We also reject defendant’s challenges to
the District Court’s jury charge. The District Court’s
January 11, 2013 judgment is therefore AFFIRMED.
BACKGROUND
Plaintiff‐Appellee Jaime Keeling is the author of Point Break
Live! (“PBL”), a parody stage adaptation of the 1991 Hollywood
action movie Point Break, starring Keanu Reeves and Patrick Swayze.
In the film, Reeves plays a rookie FBI agent who goes undercover to
infiltrate a gang of bank‐robbing surfers led by Swayze’s character.
The Keeling‐authored PBL parody parallels the characters and plot
elements from Point Break and relies almost exclusively on selected
dialogue from the screenplay. To this raw material, Keeling added
jokes, props, exaggerated staging, and humorous theatrical devices
to transform the dramatic plot and dialogue of the film into an
3
irreverent, interactive theatrical experience. For example, in
Keeling’s PBL parody, Point Break’s death‐defying scene in which
Reeves’s character must pick up bricks, blindfolded, in a swimming
pool takes place, instead, in a kiddie pool. Massive waves in the
film are replaced by squirt guns in the PBL parody. A central
conceit of the PBL parody is that the Keanu Reeves character is
selected at random from the audience and reads his lines from cue
cards, thereby lampooning Reeves’s reputedly stilted performance
in the movie. Keeling added to the effect that the audience was
watching the making of the film by creating a set of film‐production
characters in the PBL parody, including a director, cinematographer,
and production assistants. Keeling possesses no copyright or license
with regard to the Point Break motion picture.
Defendant‐Appellant Eve Hars, proceeding pro se on appeal,
owns production company New Rock Theater Productions, LLC
(“New Rock”). In 2007, Keeling executed a production agreement
with Hars, pursuant to which New Rock would stage a two‐month
production run of PBL from October through December 2007.
During that time period, Hars conferred with an entertainment
attorney and the holder of the copyright to the Hollywood
screenplay for Point Break, and eventually Hars came to believe that
Keeling did not lawfully own any rights to the PBL parody play.
Accordingly, after its initial two‐month run, Hars sought to
renegotiate the terms of the contract upon its expiration and, in
effect, continue to produce PBL without further payment to Keeling.
Keeling refused renegotiation, threatened suit, and registered a
4
copyright in PBL, without first obtaining permission from the
copyright holders of the original Point Break. Keeling’s asserted
copyright in PBL became effective on January 4, 2008. Hars and
New Rock continued to stage performances of PBL for four years
thereafter without payment to or authorization from Keeling.
In December 2010, Keeling brought suit against Hars, New
Rock, and New Rock investor Ethan Garber, asserting claims for
copyright infringement, breach of contract, and tortious interference
with contract. In the District Court proceedings, all parties were
represented by counsel. After the District Court denied defendants’
motion to dismiss, see Keeling v. New Rock Theater Prods., LLC, No. 10
Civ. 9345 (TPG), 2011 WL 1899762, at *1 (S.D.N.Y. May 17, 2011),
defendants asserted counterclaims seeking, inter alia, a declaration
that Keeling’s PBL copyright registration was invalid. Upon
completion of discovery, defendants moved for summary judgment,
arguing primarily that PBL, an unauthorized derivative work, was
not entitled to copyright protection as a matter of law. The District
Court denied defendants’ successive motions for summary
judgment, ruling that a parody that makes “fair use” of another
copyrighted work may contain sufficient originality to merit
copyright protection itself. See Keeling v. New Rock Theater Prods.,
LLC, No. 10 Civ. 9345 (TPG), 2011 WL 6202796 (S.D.N.Y. Dec. 13,
2011); Keeling v. New Rock Theater Prods., LLC, No. 10 Civ. 9345
(TPG), 2012 WL 5974009 (S.D.N.Y. Nov. 29, 2012). The District Court
also rejected defendants’ argument that a script heavily reliant on
theatrical devices, as was PBL’s, could not lawfully constitute
5
original creative expression deserving of copyright protection. 2011
WL 6202796 at *1. Finally, the Court found that multiple
outstanding issues of material fact remained—including whether
PBL constituted a “fair use” parody of Point Break and whether PBL
contained sufficient originality to merit copyright protection. Id.
In December 2012, the case proceeded to a five‐day trial by
jury. At the close of the evidence, the parties delivered summations
focused largely on whether PBL was a parody at all, and if so,
whether that parody constituted non‐infringing “fair use.” Record
on Appeal (“ROA”), Keeling v. New Rock Theater Prods., LLC, No. 10
Civ. 9345 (TPG) (GWG), Dkt. No. 98, at 567‐648 (S.D.N.Y. Dec. 7,
2012). The District Court then charged the jury, beginning with the
first question the jury would be asked to answer: “whether [PBL]
was a fair use by way of a parody of the original movie Point
Break.” Id. at 652. The District Court declined to enumerate each of
the four statutory factors pertaining to “fair use,” opting instead to
attempt to “put a little more content on the discussion,” which the
District Court believed that the “list of factors” alone lacked. Id. at
655. The pertinent instructions on fair use were as follows:
Now, the person who creates the derivative
work has a copyright in that derivative work. Now,
if the derivative work is simply somehow really a
copy of the original then it may be somehow called a
derivative work but it infringes on the owner of the
original. But if it is what we call “fair use” then it is
not an infringement on the original and it is a new
work and it has its own copyright and the author or
6
the creator of the new work owns that copyright as
well as owns the new work. . . .
The plaintiff contends that [PBL] is a fair use of
sections of the script of the original movie. The
plaintiff contends that this is fair use as a parody and
a parody, certainly, can be fair use. . . .
A proper parody is something which generally
ridicules to some extent, makes fun of, makes light of
the original. Suppose the original is the very serious
drama of some kind and if someone comes along
and makes a parody, it is generally turning it into
something different, humorous, ridiculous. And if
that is done it is fair use to use even substantial
amounts of the script of the original movie. It is fair
use to even use the high points or the high point as
long as it is not simply conveying again the original
movie. If it takes the script of the original movie and
creates something which uses that script to ridicule
to make fun of, to make light of to produce humor
instead of the original seriousness, then that is a
legitimate parody.
Now, the amount of script taken from the
original cannot completely go beyond the needs of
the parody. In other words, if the parody is for, if
we could imagine, a third it is not legitimate to copy
the other two thirds and put them out again. But if
the amount of script used is reasonably related to the
production of the humor, the ridicule, the
lightheartedness and so forth that is a legitimate
parody and that is fair use.
Now, it is sometimes said that the judge in
instructing a jury on fair use is supposed to refer to a
7
list of factors. The list of factors is a list of factors
without much content or meaning. And what I am
trying do with you now is to refer to the necessary
factors but I hope put a little more content on the
discussion. And really thatʹs all I have to say to
define fair use by way of parody.
Id. at 653‐55. No party objected to the District Court’s jury
instructions. Id. at 668.
The jury returned a verdict in Keeling’s favor in the amount of
$250,000, finding (a) that Keeling’s use of material from the film
Point Break was “fair use in the way of a parody,” (b) that Keeling
was the sole owner of the copyright to PBL, and (c) that defendants
infringed Keeling’s copyright. Id. at 675‐77. The District Court
entered judgment on January 11, 2013.
Defendant Hars, now proceeding pro se, appealed. She
challenges the District Court’s denial of her pretrial motion for
summary judgment as well as the subsequent jury verdict in favor of
Keeling.1
1 Although Hars suggests in her reply brief that she does not in fact
challenge the District Court’s denial of her pretrial motion for summary
judgment and instead appeals only “the pure legal issues raised” therein, see
Def.’s Reply Br. 9, we treat her appeal, taken as a whole, as a challenge to the
District Court’s denial of summary judgment as well as the subsequent jury
verdict.
8
DISCUSSION
Though not a model of clarity,2 Hars’s appellate briefing
primarily raises three issues: first, whether PBL, as an unauthorized
“fair use,” is entitled to copyright protection capable of supporting
Keeling’s claim of infringement by a third party; second, whether
Keeling’s contributions to the work—consisting of individually non‐
copyrightable elements—could be sufficient to support a copyright
in PBL; and third, whether the District Court’s jury instructions were
erroneous. The first two issues relate to the same question: whether
Keeling’s work was copyrightable. We consider each issue in turn.
I. Challenges to Copyright Law
In general, “where summary judgment is denied and the
movant subsequently loses after a full trial on the merits, the denial
of summary judgment may not be appealed.” Schaefer v. State Ins.
Fund, 207 F.3d 139, 142 (2d Cir. 2000) (internal quotation marks
omitted). However, this rule does not apply where, as here, the
district court’s purported error was “purely one of law.” Id. In such
circumstances, we review de novo the legal issues underlying the
district court’s denial of summary judgment. Id.
We construe the submissions of a pro se litigant liberally and interpret
2
them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (internal
quotation marks omitted).
9
The Copyright Act principally offers copyright protection for
“original works of authorship.” 17 U.S.C. § 102(a). Pursuant to the
statute’s terms, authors may control the copying of their original
works and also retain “the exclusive rights” to “prepare derivative
works based upon the copyrighted work.”3 17 U.S.C. § 106. Thus,
unauthorized derivative works are typically afforded no copyright
protection because they unlawfully infringe the exclusive rights of
the original author. Id.; see also id. § 103 (“[P]rotection for a work
employing preexisting material in which copyright subsists does not
extend to any part of the work in which such material has been used
unlawfully.”).
The doctrine of “fair use” constitutes a critical and long‐
standing limitation on the exclusive rights of the original copyright
owner.4 Though only made a part of statutory copyright law in
1976, “[f]rom the infancy of copyright protection, some opportunity
3 Section 101 of the Copyright Act defines a “derivative work” as “a work
based upon one or more preexisting works” such as a translation,
fictionalization, “or any other form in which a work may be recast, transformed,
or adapted.” 17 U.S.C. § 101. The definition further notes that such a work can
consist of “editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship.” Id.
4 See generally Authors Guild v. Google, Inc., No. 13‐4829‐cv, ‐‐ F.3d ‐‐, 2015
WL 6079426, at *5 (2d Cir. Oct. 16, 2015) (“For nearly three hundred years, since
shortly after the birth of copyright in England in 1710, courts have recognized
that, in certain circumstances, giving authors absolute control over all copying
from their works would tend in some circumstances to limit, rather than expand,
public knowledge.” (footnote omitted)); Pierre N. Leval, Toward a Fair Use
Standard, 103 HARV. L. REV. 1105 (1990) (discussing the doctrine of fair use within
the context of the history and objectives of copyright law).
10
for fair use of copyrighted materials has been thought necessary to
fulfill copyright’s very purpose, ‘to promote the Progress of Science
and useful Arts.’” Campbell v. Acuff‐Rose Music, Inc., 510 U.S. 569,
575 (1994) (alterations omitted) (quoting U.S. CONST., Art. I, § 8, cl.
8). Under Section 107 of the Copyright Act, certain unauthorized
“fair use of a copyrighted work,” for purposes such as criticism,
comment, news reporting, teaching, scholarship and research, “is
not an infringement of copyright” and thus is lawful.5 17 U.S.C. §
107. While parody is not expressly mentioned in the statute, the
Supreme Court has instructed that “parody, like other comment or
criticism, may claim fair use under § 107.” Campbell, 510 U.S. at 579.
In this case, Hars does not dispute the jury’s factual
determination that Keeling’s use of Point Break material in her
creation of PBL was “fair use in the way of a parody.” ROA, Dkt.
No. 98, at 675. Indeed, she repeatedly disclaims any “fair use”
challenge, explaining that she “is not concerned about whether
Keeling’s script is a fair use of Point Break because it is completely
irrelevant to any and all of Hars’ arguments.” Def.’s Reply Br. 20; see
also id. at 20‐21 (“[T]he issue of whether Keeling’s script qualifies as
fair use was astutely and consciously avoided by Hars in her brief.
5 The Copyright Act lists four non‐exhaustive factors for courts to
consider in determining whether a use is “fair”: “(1) the purpose and character
of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the
amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and (4) the effect of the use upon the potential market for or
value of the copyrighted work.” 17 U.S.C. § 107.
11
. . . Hars is not asking the Court to spend even one second of
valuable time trying to determine whether Keeling’s script qualifies
for fair use.”).
Instead, Hars presents two legal arguments for why copyright
protection should not extend to Keeling’s work, both of which were
first raised in defendants’ summary judgment briefing and denied
by the District Court.
A. Copyright Protection: Fair Use
First, Hars argues that an unauthorized derivative work like
PBL categorically may not receive independent copyright protection,
regardless of whether it makes fair use of its source material.6 This
argument flows from the admittedly unusual posture in which this
case arises. Typically, fair use is invoked as a defense against a claim
of copyright infringement brought by the source‐material
6 Both parties characterize PBL as a “derivative work.” See Def.’s Br. 1‐3,
9‐18, 27‐40, 45‐51; Pl.’s Br. 1, 9, 21‐32. We note that, as a general matter,
“derivative works” and “fair use” are discrete legal categories. Under the
Copyright Act, a derivative work involves a transformation to the work’s
“form,” 17 U.S.C. § 101, while fair use involves a transformation of the work’s
“purpose and character,” 17 U.S.C. § 107. PBL is both—it involves the
dramatization of a motion picture, making it a derivative work, and it involves a
transformation of the motion picture’s character from serious to parody, making
it non‐infringing fair use. The parties here seem to confuse the distinction
between derivative works and fair use. Nonetheless, because neither party has
raised this issue on appeal, and because our analysis applies equally to
derivative and non‐derivative works so long as the work constitutes lawful fair
use, we need not further address questions raised by the parties’
characterization.
12
rightsholder. Here, however, Keeling invoked the fair‐use principle
to establish an affirmative claim against defendants for unauthorized
use of her PBL parody. Hars concedes that Keeling could use the
“fair use” doctrine as a “shield” against a claim of copyright
infringement, but argues that she may not use the doctrine as a
“sword” to vest a work with independent copyright protection
against third‐party infringement. Def.’s Br. 13‐14.
This argument is inconsistent with the operative statutory
language. The Copyright Act provides that derivative works are
entitled to “independent” copyright protection, separate from any
copyright in the preexisting material. 17 U.S.C. § 103(b). Though
copyright protection expressly may extend to derivative works
“employing preexisting material in which copyright subsists,” the
statute cautions that protection “does not extend to any part of the
work in which such material has been used unlawfully.” 17 U.S.C.
§ 103(a) (emphases supplied). If, however, a work employs
preexisting copyrighted material lawfully—as in the case of a “fair
use”—nothing in the statute prohibits the extension of the
“independent” copyright protection promised by Section 103.7 Id.
§ 103(b). A close reading of the statute therefore makes plain that an
unauthorized but lawful fair use employing preexisting copyrighted
To be sure, the independent copyright protection in the new work is
7
limited to that work’s original content: “[C]opyright in a compilation or
derivative work extends only to the material contributed by the author of such
work, as distinguished from the preexisting material employed in the work.” 17
U.S.C. § 103(b).
13
material may itself merit copyright protection. It is not the
invocation of fair use that provides the work copyright protection,
and perhaps thinking so has created some confusion on the part of
the defendant. 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.
Resisting this statutory principle, Hars argues that the case
law does not permit the extension of independent copyright
protection to an unauthorized fair use, and contends that the only
court to have dealt with the issue found that “Congress did not
contemplate such” a result. Def.’s Br. 14 (quoting Sobhani v.
@Radical.Media, Inc., 257 F. Supp. 2d 1234, 1239 (C.D. Cal. 2003)). But
in fact, Congress did expressly contemplate the extension of
copyright protection where, as here, a work constituted non‐
infringing fair use. The relevant legislative report stated that,
[u]nder this provision [(i.e., Section 103(a) of the
Copyright Act)], copyright could be obtained as long
as the use of the preexisting work was not
”unlawful,” even though the consent of the
copyright owner had not been obtained. For
instance, the unauthorized reproduction of a work might
be ”lawful” under the doctrine of fair use or an
applicable foreign law, and if so the work incorporating
it could be copyrighted.
H.R. Rep. No. 94‐1476, at 58 (1976) (emphases supplied). This
language addresses precisely the issue raised in the instant appeal.
14
Although “the consent of the copyright owner”—here, the
rightsholder in the Hollywood screenplay Point Break—“had not
been obtained” by Keeling, her resulting parody PBL was “’lawful’
under the doctrine of fair use,” and accordingly, it “could be
copyrighted.”
We have previously confirmed that, because “[d]erivative
works are explicitly included in the subject matter of copyright as
defined by the Copyright Act,” the mere fact that a litigant’s
unauthorized “creations are derivative works is in itself, of course,
no bar to copyrightability.” Durham Indus., Inc. v. Tomy Corp., 630
F.2d 905, 909 (2d Cir. 1980) (citing 17 U.S.C. § 103). And this
statutory interpretation is consistent with the animating policy
behind the fair use doctrine—to fulfill copyright’s core purpose of
promoting development in arts and science. See Campbell, 510 U.S. at
575. Without any possibility of copyright protection against
infringement for her original fair‐use parody, playwrights like
Keeling might be dissuaded from creating at all.
Accordingly, we agree with the District Court’s holding that,
when a derivative work’s unauthorized use of preexisting material
is fair use and the work contains sufficient originality, its author
may claim copyright protection under § 103 for her original creative
contributions. See Keeling, 2011 WL 1899762, at *1.
15
B. Copyright Protection: Selection, Coordination,
and Arrangement of Un‐Protectable Elements
Hars’s second legal argument fares no better. Hars contends
that if an author’s original contributions to a derivative work consist
solely of non‐copyrightable individual elements, those contributions
cannot support a copyright. Specifically, she claims that Keeling’s
original contributions to the PBL script are insufficient to warrant
copyright protection because they consist entirely of non‐
copyrightable stage directions and theatrical devices. See 17 U.S.C.
§ 102(b) (providing that copyright protection does not extend to
“any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work”).
We disagree. As the District Court properly found, copyright
law protects not only the individual elements themselves, but the
creative choices made in selecting and arranging even un‐
copyrightable elements. Indeed, the Copyright Act itself explicitly
protects “compilations,” 17 U.S.C. § 103, and a long line of case law
confirms that copyright covers compilations of raw data or facts,
elements which are not themselves protectable, so long as the
compilation itself (including the arrangement of those elements)
possesses some “minimal degree” of creativity, “no matter how
crude, humble or obvious.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 345 (1991) (internal quotation marks omitted); see also
Harper & Row v. Nation Enters., 471 U.S. 539, 547 (1985) (“Creation of
a nonfiction work, even a compilation of pure fact, entails
16
originality.”); Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 80 (2d
Cir. 2004) (“It is well settled that compilations of fact may be
copyrightable even though facts themselves are not protected”). The
Supreme Court has made clear that even a telephone directory may be
copyrighted if its non‐copyrightable factual elements are arranged
with the requisite “minimal degree” of originality. See Feist, 499 U.S.
340. Keeling’s original contributions to PBL clearly exceed this
creativity threshold.8
To be sure, Hars is correct that Keeling could not copyright
the commonly used individual stage directions and theatrical
devices—e.g., the concept of drafting an audience member to play
the lead, the reliance on cue cards, or the use of squirt guns—which
together comprise PBL’s jokes. But Keeling has never sought to do
so. Rather, as the District Court correctly held, “Keeling’s creative
8 We similarly reject Hars’s related argument that Point Break material
improperly “pervade[s]” the PBL script in contravention of Eden Toys, Inc. v.
Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982), superseded by rule on other
grounds as recognized in Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726
F.3d 62, 84 (2d Cir. 2013). See Def.’s Br. 35‐37. To the extent it even applies in this
case, which is uncertain, Eden Toys requires merely “some substantial, not merely
trivial, originality” to meet the standard for sufficient originality. 697 F.2d at 34
(internal quotation marks omitted). PBL’s transformative parody fulfills this
standard, and its use of a substantial portion of the underlying work presents no
hindrance to findings of either fair use or originality. Cf. Campbell, 510 U.S. at 588
(“When parody takes aim at a particular original work, the parody must be able
to conjure up at least enough of that original to make the object of its critical wit
recognizable.” (internal quotation marks omitted)); Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006) (holding that even the use
of an entire original work may be permissible fair use, so long as the use is
“tailored to further [the new work’s] transformative purpose”).
17
contribution, and thus her copyright, is in the original way in which
[she] has selected, coordinated, and arranged the elements of . . . her
work” to create new parodic meaning. Keeling v. New Rock Theater
Prods., LLC, No. 10 Civ. 9345 (TPG), 2013 WL 918553, at *2 (S.D.N.Y.
Mar. 11, 2013) (internal quotation marks omitted) (quoting
Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1004 (2d Cir. 1995)).
Hars’s legal challenges to the jury’s infringement verdict thus
fail.
II. Challenges to Jury Instructions
We now turn to Hars’s challenges to the District Court’s jury
instructions. Because Hars failed to object to the charge at trial, we
review these claims for “plain error,” and will only grant relief if
there was “(1) error, (2) that is plain, (3) that affects substantial
rights, and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Weintraub, 273 F.3d 139, 145 (2d Cir. 2001) (alterations and internal
quotation marks omitted); see also Fed. R. Civ. P. 51(d)(2) (“A court
may consider a plain error in the instructions that has not been
preserved as required by Rule 51(d)(1) if the error affects substantial
rights.”). “A jury charge is erroneous if it misleads the jury as to the
correct legal standard, or if it does not adequately inform the jury of
the law.” Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 1996).
Conversely, “a jury instruction will be deemed adequate if the
charge, taken as a whole, is correct and sufficiently covers the case
so that a jury can intelligently determine the questions presented to
18
it.” Id. at 553 (internal quotation marks omitted). We have
previously observed that the plain‐error exception to Rule 51’s
objection requirement “should only be invoked with extreme
caution in the civil context.” Rasanen v. Doe, 723 F.3d 325, 333 (2d
Cir. 2013) (internal quotation marks omitted) (quoting Pescatore v.
Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996)). “To
constitute plain error, a court’s action must contravene an
established rule of law, and go to the very essence of the case.” Id.
(alterations, citation, and internal quotation marks omitted) (quoting
Lavin‐McEleney v. Marist Coll., 239 F.3d 476, 483 (2d Cir. 2001);
Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)).
Hars contends that the jury instructions were erroneous in
two respects: first, she argues that the District Court improperly
excused Keeling from proving that her original contributions to the
PBL script were sufficient to merit copyright protection; and second,
she argues that the District Court failed to enumerate the four
statutory “fair use” factors in its instructions to the jury. Neither
constitutes plain error.
A. Originality Instruction
In her first challenge to the jury charge, Hars argues that the
District Court failed to charge the jury that “[o]riginality is a
constitutional requirement” and is the “sine qua non of copyright.”
Feist, 499 U.S. at 345‐46; see Def.’s Br. 27. Hars points out that the
District Court never provided a separate instruction on originality to
the jury. Hars also contends that the District Court misrepresented
19
the governing law by suggesting that a finding of fair use would
automatically entitle PBL to copyright protection. Hars
characterizes this position as the “fair use = copyright” equation, and
attacks the equation for implicitly excusing Keeling from offering
the necessary proof of her original, protectable contributions. Def.’s
Br. 9‐15.
Admittedly, the District Court did not offer a discrete, explicit
instruction on the requirement of originality. Instead, it collapsed
aspects of both fair use and originality into a single set of
instructions. The charge did, however, sufficiently instruct the jury
on the originality requirement to survive plain error review. In its
explanation of fair use, the District Court distinguished between an
infringing “copy of the original” and a non‐infringing “new work.”
ROA, Dkt. No. 98, at 653. The Court went on to explain the kind of
originality required for a “fair use” parody to merit “its own
copyright” protection:
A proper parody is something which generally
ridicules to some extent, makes fun of, makes light of
the original. Suppose the original is the very serious
drama of some kind and if someone comes along
and makes a parody, it is generally turning it into
something different, humorous, ridiculous. And if
that is done it is fair use to use even substantial
amounts of the script of the original movie. It is fair
use to even use the high points or the high point as
long as it is not simply conveying again the original
movie. If it takes the script of the original movie and
creates something which uses that script to ridicule
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to make fun of, to make light of to produce humor
instead of the original seriousness, then that is a
legitimate parody.
Id. at 654‐55. Without using the word “originality,” the District
Court thus indicated that a protectable fair use must be “new,” must
“turn[ ] [the original material] into something different,” and must
avoid “simply conveying again the original” material. Id.
These jury instructions adequately trace the law of fair use
and, more specifically, the underlying concepts of transformative
purpose and character, which are acknowledged to be “[t]he heart of
the fair use inquiry” in general, On Davis v. Gap, Inc., 246 F.3d 152,
174 (2d Cir. 2001), and “the heart of any parodist’s claim” in
particular, Campbell, 510 U.S. at 580. See also Blanch v. Koons, 467 F.3d
244, 251‐52 (2d Cir. 2006) (a new work is transformative when it
transforms the “raw material” of the underlying work “in the
creation of new information, new aesthetics, new insights and
understandings” (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Grp.,
Inc., 150 F.3d 132, 142 (2d Cir. 1998))).
It would arguably have been preferable for the District Court
to deliver separate instructions on fair use and originality.
Nevertheless, its combination of these elements into one instruction
does not “contravene an established rule of law.” Rasanen, 723 F.3d
at 333. Even if this combination was error, we would still not
conclude that it affected Hars’s substantial rights. “[T]aken as a
whole,” the charge was legally “correct,” alerted the jury to the issue
of originality, and “sufficiently cover[ed] the case so that a jury
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[could] intelligently determine the questions presented to it.”
Hathaway, 99 F.3d at 553 (internal quotation marks omitted).
Proceeding with the requisite “extreme caution in the civil context,”
Rasanen, 723 F.3d at 333, we hold that the District Court did not
plainly err in delivering its originality instruction.
B. Statutory Factors Instruction
We likewise reject Hars’s challenge to the District Court’s
failure to explicitly enumerate in its instructions all four of the fair‐
use factors listed in 17 U.S.C. § 107.
As a legal matter, the four factors do not each carry equal
weight in an evaluation of parody as fair use; indeed, some may not
be relevant at all. As noted, the first factor—“the purpose and
character of the use,” 17 U.S.C. § 107—lies at the “heart of the
inquiry” for parody, while the other three factors are much less
important.9 Indeed, as the Supreme Court has instructed, “the more
9 See Campbell, 510 U.S. at 586 (the second factor—the nature of the
original copyrighted work—“is not . . . ever likely to help much in separating the
fair use sheep from the infringing goats in a parody case, since parodies almost
invariably copy publicly known, expressive works”); id. at 588 (the third factor—
the amount and substantiality of the portion of the original work used—is less
important, as “parody must be able to ‘conjure up’ at least enough of that
original to make the object of its critical wit recognizable”); id. at 591 (as to the
fourth factor—the effect on the market for or value of the original copyrighted
work—“it is more likely that [a parody] will not affect the market for the original
in a way cognizable under this factor, that is, by acting as a substitute for it . . . [,]
because the parody and the original usually serve different market functions”).
See also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir. 1998)
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transformative the new work [under factor one], the less will be the
significance of other factors . . . that may weigh against a finding of
fair use.” Campbell, 510 U.S. at 579.
In line with this hierarchy of significance, the District Court’s
fair‐use charge emphasized the question of transformative use under
the first statutory factor. The Court mentioned the third factor only
briefly (“the amount of script taken from the original cannot
completely go beyond the needs of the parody,” ROA, Dkt. No. 98,
at 655), and did not refer to the second and fourth factors at all. We
find its stated rationale—the desire to “put a little more content on
the discussion,” which the “list of factors” alone lacked, id.—to be
understandable, if not advisable. The safer course is for the trial
judge to explain the application of all four factors, however briefly,
based on the circumstances presented.
Nonetheless, even if we assumed that the failure to describe
all four factors was error, this error did not affect Hars’s substantial
rights. In order to show plain error affecting “substantial rights,” a
litigant must typically show that the error was “prejudicial: It must
have affected the outcome of the district court proceedings.” Bennett
v. United States, 663 F.3d 71, 88 (2d Cir. 2011) (emphasis and internal
quotation marks omitted) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Hars presented no evidence that would tend to
support a different verdict on “fair use,” even if the District Court
(“[T]he third factor [has] little, if any, weight against fair use so long as the first
and fourth factors favor the parodist.”).
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had covered the four factors in detail. On the contrary, Hars herself
effectively concedes this point by disclaiming any challenge to a
finding of fair use. See Def.’s Reply Br. 20 (“[A]t no time did Hars
even imply, never mind argue, that Keeling’s script was not fair use
of Point Break.” (emphasis in original)). Without a showing of
prejudice to Hars’s substantial rights, her challenge to the jury
instructions on fair use necessarily fails.
CONCLUSION
To summarize, we hold that:
(1) the author of an unauthorized fair use exhibiting sufficient
originality may claim independent copyright protection under the
Copyright Act, 17 U.S.C. § 103, against infringement for the original
creative contributions therein;
(2) copyright protection may extend to a work that exhibits
the sufficient minimal degree of originality in selecting,
coordinating, and arranging otherwise un‐protectable underlying
elements; and
(3) the District Court did not err in delivering its jury
instructions on originality and fair use.
Having rejected each of defendant Hars’s arguments, we
AFFIRM the District Court’s January 11, 2013 judgment in its
entirety.
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