“Vape,” a theatrical parody of the original Broadway musical “Grease” that was later adapted in the 1978 feature film, recently prevailed in a copyright case where the court held that Vape was a fair use that did not require permission from the owners of Grease. The case, Sketchworks Industrial Strength Comedy, Inc. v. Jacobs, was brought by a sketch comedy company to seek a declaratory judgment that its theatrical production, Vape, had not infringed Grease’s co-authors’ original copyright, after they had tried to stop the Vape production. In a ruling handed down in mid-May, Judge Laura Taylor Swain of the Southern District of New York held that Vape was indeed fair use and could be performed without permission. See No. 19-CV-7470-LTS-VF, 2022 WL 1501024 (S.D.N.Y. May 12, 2022).
Like Grease, Vape centered around summer paramours Sandy and Danny, and their friends, when reunited for a school year at Rydell High. Where there had been the “Pink Ladies” and “T-Birds,” now there was the “#PinkSquad” and “T-Bros.” Updating the classic musical for the #MeToo era, Vape took from Grease’s setting, character names, and original songs to narrate the story from a female perspective, criticizing the original for its misogynistic and sexist aspects, particularly the famous ending in which Sandy trades her bobby socks and conservative values for black leather and cigarettes. Adding millennial slang, modern pop culture, and overly-exaggerated plot points, now self-referential characters, like Vape’s Frenchy, joked that Rydell High was “the one school where everybody randomly busts into choreographed song and dance, and we all look at least 30.” Elsewhere, Sandy explained her willingness to forgive Danny for treating her poorly by noting “Lucky for you, society has taught me to give an unlimited amount of chances to undeserving men.”
Examining these variations, the court undertook the traditional four-factor fair use analysis—weighing (1) the purpose and character of the use, including whether it was 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—to determine whether to qualify Vape as fair use or infringement.
Swaying the analysis was a preliminary finding under the first factor that Vape was a parody. The court seized upon numerous examples, including those above, in which Vape targeted specific elements from Grease, rather than society at large. For example, in transforming herself for Danny at the end of Vape, Sandy now overtly acknowledged how she wanted him back and so would “change everything about [herself] for him” while “also abandoning [her] identity and values.” Considering that parody must conjure up enough of the original work to transform it via critique, the court found that these callbacks were necessary invocations for Vape to comment on Grease’s misogynistic tendencies and demonstrate how society had changed. To the court, Vape was not merely trying to mine the original in order to recycle its content but to comment on it, and to create something new.
With Vape’s status as transformative parody established, the court quickly dispatched the rest of the remaining fair use factors. Vape’s commercial nature was of little significance owing to its transformation. Meanwhile, Grease’s nature as a creative work (which would fall within the core of copyright’s protections) was less significant because parodies, by nature, take creative, expressive works, rather than factual compilations, as their subjects. The use of large portions of the heart of Grease was justified because parody must often take from the original’s most memorable features to ensure an audience will recognize the parodic distortions. Vape could not have communicated its critical views of Grease’s happy ending, for instance, without invoking the characters’ original relationship. As to potential market harm, the court did not believe Vape constituted a derivative or sequel. Based on its critical messages and shifted tone, audiences would be unlikely to view it as a replacement of Grease or derivative. Critical parody rarely is.
After quickly addressing further claims surrounding trademark misappropriation and right of privacy—again in Vape’s favor—the court granted Vape’s motion for judgment on the pleadings, opening the door for the show’s return to the rails in its home base Atlanta, and other cities.
To the theatrical world and creative community at large, Sketchworks demonstrates that parody as a fair use defense to copyright infringement is alive and well. Although artists must still weigh the pros and cons of borrowing heavily from an original work, when the taking fuels parody—that is, requires an original work to comment, not merely on societal themes at large, but the original’s presentation of them—the show may go on, sustained by copyright’s fair use doctrine. Though parody remains a narrow category within fair use (and is not the same genre as satire), Sketchworks’ example of parody-by-the-numbers, so to speak, provides a roadmap for successful theatrical parody.
Filed in: Theater / Dance
June 28, 2022