Industrial Strength Parody – Fair Use and Musicals

Written by Ian Logan

On May 12, 2022, Judge Laura Taylor Swain of the Southern District of New York held that Vape—a parodic retelling of famous musical Grease through a feminist lens—constitutes fair use.  See Sketchworks Industrial Strength Comedy, Inc. v. James H. Jacobs, et al., No. 19-CV-7470-LTS-VF, 2022 WL 1501024 (S.D.N.Y May 12, 2022).  The case was initiated by Sketchworks, a Georgia-based sketch comedy company, after the copyright owners of Grease served them with a cease-and-desist letter days prior to a 2019 performance of its musical Vape in New York City. Sketchworks sought declaratory relief and moved for a judgment on the pleadings, arguing that their production is a parody of Grease and constitutes fair use under Section 107 of the Copyright Act of 1976. The Defendants argued that Vape’s use of Grease’s character names, settings, and storyline, as well as portions of nine Grease songs clearly violated their copyright.

In its analysis, the court reviewed Vape and Grease side-by-side and conducted a four-factor analysis under Section 107. Those factors are: (1) the purpose and character of the use; (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.

In analyzing the first factor, the court held that Vape was highly transformative of Grease, weighing in favor of fair use. The court agreed with Sketchworks that Vape reexamines and recontextualizes Grease from a female perspective in the #MeToo era, with the purpose of showing through parody how a sexist Grease has aged poorly. Specifically, the court found that Vape successfully parodies the misogyny and unrealistic plot of Grease by changing lyrics in the songs to highlight, e.g., that the character of Sandy would willingly change everything about her appearance to please a man; and that the character Danny could not appear vulnerable around his friends and drove a particular car in order to maintain a façade of masculinity. The court wrote, “By juxtaposing familiar elements from Grease, such as the main characters and the plot arc, with alterations to the script and song lyrics, Plaintiff draws attention to the treatment and plight of the female characters in Grease and comments on how misogynistic tendencies have both evolved since Grease was developed and remain the same.”

In arguing that Vape wasn’t transformative, defendant copyright owners relied on the recent Second Circuit decision, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021) (“Warhol”), in which the Second Circuit held that Andy Warhol’s Prince series was not transformative of the underlying photograph of the musician Prince because the “overarching purpose and function of the two works” were identical, and that the derivative in no way served a purpose that differed from the original. The court distinguished Warhol, however, noting that Vape leverages the characters and story lines of Grease in order to reshape the themes and messages conveyed to the audience, creating a new and distinct purpose for Vape as a creative work. Interestingly, the district court ruled even though the United States Supreme Court has granted certiorari in Warhol.

Under the second factor, because the court concluded that Vape is a parody of Grease, it gave little weight to the creative nature of the copyrighted work, as most cases involving transformative uses do.

Next, as to the amount and substantiality of the portion of Grease used in Vape, the court acknowledged that Vape took substantial elements from Grease, not all of which were parodied. However, the court found that these unchanged aspects of the original were not excessive, and were “necessary for Vape to achieve its parodic purpose.” The court noted that some qualities carried over from the original served as important allusions to the source material, while Vape also made considerable changes to the script, and created entirely new elements to achieve its parodic purpose.

Finally, the court found a minimal possibility of potential harm to Grease’s market for derivatives. As an ardent criticism of the original film, Vape is unlikely to be seen as a derivative sequel or an updated remake of Grease. While Vape does arguably update Grease with contemporary language and cultural norms, the court found that “it does so in a spirit of mockery,” rather than in “genuine or respectful attempt to update the film….”

After finding fair use, the district court held that Sketchworks was entitled to recover its attorney’s fees incurred in the prosecution of the action.

The Defendants also filed counterclaims for trademark infringement and breach of the writers’ rights to privacy under sections 50 and 51 of the New York Civil Rights Law, although the court found these claims to be inadequately pled and offered only a brief analysis of each.

With the Warhol decision pending at the Supreme Court, it remains to be seen whether the ruling and the Southern District’s decision will “go together” or whether the decision will remain alone as “hopelessly devoted to fair use.”

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