Look at Me, I’m Parod-y

This month, New York federal district court Judge Laura Taylor Swain gave what is expected to be her final substantive ruling on the dispute between Sketchworks Industrial Strength Comedy Inc. and the copyright owners of the musical Grease, which Sketchworks’ musical Vape parodies. In her ruling, Judge Swain held that Vape constitutes “fair use” of Grease’s copyright and is not liable for infringing Grease’s intellectual property.

I previously wrote about this lawsuit in my April 30, 2021 post Is Grease the Word? That post focused on the judge’s dismissal of the motion filed by the copyright owners of Grease, who had argued to the court that the case should be thrown out because there was no controversy at issue. In response, the judge found there to be a controversy, noting that Sketchworks had previously received a cease-and-desist letter from a representative of Grease’s copyright holders when they had planned to perform Vape. Sketchworks was also told by an attorney for the playwright of Grease that no fair use existed, causing Sketchworks to cancel its intended performances of the show, which were to be held at Improv Asylum NYC in August of 2019, following a run in Atlanta, Georgia the prior year.

As a result of that ruling, the case moved forward and the parties each sought to obtain a judgement in their favor on the merits. In response, in her most recent ruling Judge Swain granted Sketchworks’ motion for such judgment and denied its opponents’ motion.

Grease, through song and dialogue, follows teenagers in the 1950’s as they navigate adolescence, peer pressure, personal values, sexual exploration, love, and friendship. Vape follows the same characters and story, and uses the instrumental tracks for the songs in Grease, but changes their words to, as Sketchworks’ described it, “poke fun at various absurdities in Grease [and] uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of Grease and to criticize its misogynistic and sexist elements.”

The judge found that, upon her evaluation of the four-factor test for copyright “fair use,” Vape is a parody and maintains a defense to copyright infringement of Grease. Those four factors include (1) the purpose and character of the use, including whether such use is of a commercial nature; (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.

With respect to the “purpose and character” factor, the court found that Vape, as a parody, was “transformative” by providing criticism and comment on the original work, Grease. The judge highlighted specific aspects of Vape to justify the determination, including Vape’s pointing out of the absurdities in the Grease pot line. For example, in Vape when Sandy is introduced to Rydell High School, Frenchy describes the School as “the one school where everybody randomly busts into choreographed song and dance, and we all look at least 30,” providing comment on the age of actors cast in the film Grease, the version of Grease on which Vape is primarily based. Further, Vape criticizes Grease’s “happy ending” in which Sandy decides to change her look and other characteristics to become a greaser in order to be in a relationship with Danny. Vape does this through the use of new sarcastic dialogue commenting on Sandy’s decision.

The judge found that the “nature of the copyrighted work” factor favored the Grease copyright holders because Grease is a creative expression that deserves copyright protection. But the judge declined to afford much weight to the determination because “parodies almost invariably copy publicly known, expressive works.”

For the third factor, the “amount and substantiality of the portion used,” the court noted that some material from the original musical was not changed in Vape, but further noted that with a parody, by its nature, recognizable allusion to the object that it is commenting on or humorizing is necessary, including the original’s most distinctive or memorable features that the audience is sure to recognize. While the copyright holders argued that Vape’s taking was “excessive” by using the setting, music, plot arc, and characters of Grease, the court held that it was not excessive but rather “necessary for Vape to achieve its parodic purpose.” The court also noted that while even some minor details were copied, Sketchworks made significant alterations to the script to portray the “original work in a new, and critical, light.”

Finally, with respect to the last “fair use” element, the court found that Vape would not significantly usurp the market for Grease because Vape is criticism and not a derivative of Grease. Weighing the factors together, the court found that Vape constitutes “fair use” of Grease and was not in violation of infringing the copyright in the work.

The court also dismissed the copyright-holders’ claims alleging that the creators of Vape infringed the Grease trademark by containing opening credit slides for Vape stating that it was “Based on GREASE” and advertisements stating that it was “A live musical parody of Grease!” The court found that these were merely descriptive phrases communicating the object of the parody, and that they made clear that Vape is indeed a parody and not a production of Grease, thus refuting the copyright-holder’s claims that an ordinary consumer would be misled by Vape’s use of the mark “Grease.” Similarly, the court found no merit to a separate claim by one of the Grease copyright holders, Jim Jacobs, the book writer and lyricist of Grease, under which he argued that Vape violated his statutory right of privacy under New York law by stating in the opening credits of Vape that the musical was “Based on GREASE by Jim Jacobs.” The court found that Mr. Jacobs’ name was used solely to identify a protected parody of a work by him and did not violate his right of privacy.

In addition to the judge finding on the merits for Vape (making Vape no “Beauty School Dropout” and “The One that [the judge] want[ed]” to win. . . (ok, I’ll stop)), the judge also found that Sketchworks was entitled to recover reasonable attorneys fees they incurred in litigating the case in court. The case opinion operates as an instructional road map for future parodies of well known musicals.

The case is Sketchworks Industrial Strength Comedy Inc. v. Jacobs et al., case number 1:19-cv-07470 in the United States District Court for the Southern District of New York.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Ethan Krasnoo who counsels clients in areas of complex commercial litigation, arbitration, mediation and dispute resolution, and employment, intellectual property, and entertainment and media. Mr. Krasnoo is admitted to practice law in New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit and United States Tax Court.