Sometimes, The Parody Defense To Copyright Infringement Works!

As a marijuana intellectual home litigator, part of my task is to assistance customers make cost-benefit and threat analyses. My coworkers and I haveactually composed anumberof posts about the defense of “parody” in marijuana intellectual home lawsuits, and why it’s a really particular defense that individuals tend to overstretch in most cases. While that stays real, it’s just reasonable to likewise compose about cases where it does work – like in this week’s choice by a New York court to consider a sketch funny group’s theater production entitled “Vape” a reasonable usage of the popular “Grease” musical.

The celebrations’ arguments

Plaintiff Sketchworks Industrial Strength Comedy, Inc. submitted a Complaint in the Southern District of New York to lookfor a declaratory judgment that Vape does not 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 own copyright in Vape. Vape portrays the verysame characters and functions parts of Grease’s popular tunes. But, Sketchworks declares Vape is a parody of Grease:

[It] “pokes enjoyable at different absurdities in Grease”, and “uses millennial slang, popular culture, a modern-day lens, and exaggeration to remark upon the plot, structure, concerns and styles of Grease and to slam its misogynistic and sexist aspects.” In so doing, Vape, which was composed and directed by ladies, “reexamines Grease from a woman pointofview in the #MeToo period,” and “exposes how the ‘humor’ and rape-cultured components of Grease have not aged well” by, for example, “directly criticiz[ing] Grease’s ‘happy ending,’ where a female entirely alters who she is in order to please a guy.” Vape likewise “recognizes that modern-day youth still browse complex concerns relating to sex, drugs, and peer pressure – simply in various kinds from their 1950s equivalents.”(Citations leftout).

Defendants argued Vape does not makeup a parody since it makesuseof the verysame music, plot, characters, settings, and other components of Grease, and that Sketchworks likewise misused Defendants’ hallmark in Grease. When they discovered Vape was setup to be carriedout in New York City in August 2019, Defendants sentout Sketchworks a stop and desist letter and Sketchworks cancelled the arranged efficiencies.

The court’s analysis

On one hand, it is well settled under case law that the Copyright Act not just safeguards “original imaginative work[s],” however likewise “derivative works,” specified as works “based upon one or more preexisting works, such as a[n] . . . art recreation, abridgement, condensation, or any other type in which a work might be modify, changed, or adjusted.” However, a copyright holder cannot avoid another individual from making a fair usage of its copyrighted product. There are 4 elements to thinkabout when assessing whether a usage is fair:

  1. the function and character of the utilize, consistingof whether such usage is of a business nature or is for not-for-profit academic functions;
  2. the nature of the copyrighted work;
  3. the quantity and substantiality of the part utilized in relation to the copyrighted work as a entire; and
  4. the result of the usage upon the prospective market for or worth of the copyrighted work.

Under the veryfirst element, the Court discovered that Vape adequately altered particular aspects of Grease, consistingof the script and lyrics to tunes, in order to stress misogynistic functions of the initial work:

[T]his is not a case in which the authors of Vape haveactually taken aspects from Grease “for the sake of benefit, and then altered the lyrics [and script] to spoof a subject having absolutelynothing to do with the initial[work] Nor is it simply a acquired upgrade of Grease. To the contrary, Vape relies on allusion to Grease to communicate its main message about Grease’s misogynistic story line. (Citations leftout).

Under the 2nd element, the Court acknowledged Grease falls within the core of the Copyright Act’s security, however decreased to manage much weight to it since “parodies nearly inevitably copy openly understood, meaningful works’ and hence, in parody cases, this element is ‘not much aid’ in identifying whether the brand-new work makesup reasonable usage.”

Under the 3rd aspect, the Court discovered that Vape’s “taking” of aspects from Grease was not extreme since they were needed for Vape to accomplish its parodic function. For example, Vape would not haveactually been able to interact its review of Grease’s “happy ending,” (Sandy altering who she is to please Danny) without integrating their general plot arc. The Court likewise keptinmind that Vape does include brand-new functions that did not exist in Grease.

Under the 4th aspect, the Court thoughtabout whether Vape would possibly take away need from Grease by serving as “a market replacement.” Under that analysis, it discovered the possible damage to Grease’s market worth to be verylittle duetothefactthat Vape might not fairly be seen as a derivative work – like a followup or upgraded remake – duetothefactthat it buffoons and reviews Grease.

Ultimately, the Court considered Vape a parody and reasonable usage of Grease, and Sketchworks was inaddition granted its lawyers’ charges in prosecution of the case.

Conclusion

To be clear, the Court’s judgment in this case is not a call for marijuana business or anybody else to pursue parodies of widelyknown works. It’s simply a tip that in really particular situations, the parody defense can be thoughtabout alive and well.

For current shortarticles particular to marijuana intellectual home lawsuits where the parody defense does not work check out the following:

  • Pot Parody: Not so Funny After All
  • Trademark Litigation: Happi Hour is Over
  • Reminder: The Parody Defense to Trademark Infringement is Tricky

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