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.
2

   

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.
3

   

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
4

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
5

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
6

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
7

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
8

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.   
9

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.   

 2 We construe the submissions of a pro se litigant liberally and interpret

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).
10

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).
11

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.
12

. . .    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.
13

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

 7 To be sure, the independent copyright protection in the new work is

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).
14

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.  
15

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.   
16

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
17

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”).
18

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
19

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
20

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
21

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
22

[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)
23

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.”).
24

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.