Sketchworks Comedy is the producer of Vape, a play advertised as a "millennial parody" of Grease. (You can watch Vape's trailer here.) After a 2019 performance of Vape in NYC was cancelled in the wake of cease and desist letters from the defendants (the owners of the copyright in Grease), the plaintiff sued in the Southern District of New York, seeking a declaration that Vape does not infringe upon the copyright in Grease on fair use grounds. The defendants counterclaimed for copyright infringement, trademark infringement and right of publicity violations. Last week, Judge Laura Taylor Swain ruled on the parties’ cross motions for judgment on the pleadings in favor of Stetchworks, finding that Vape was protected under fair use as a parody.

I fell hard for Grease when I first saw it in the summer of 1978. My ten-year-old self identified with Sandy, the goody-two-shoes outsider who had trouble gaining her social footing in the new school to which her parents cruelly made her transfer for her senior year of high school. (My middle-aged self is drawn to Rizzo. Natch.) I loved the music and, to this day, can sing (poorly) every lyric of every song. However, not everyone thinks that Grease is perfect. Some have noted that the plot requires a suspension of disbelief. (What are the odds that Sandy and Danny would end up at the same high school following their glorious "Summer Nights'" by the sea? Why would Sandy remain "Hopelessly Devoted" to a knucklehead like Danny after his abysmal behavior once they were reunited?) Others have remarked, perhaps a little uncharitably, that the film's cast was a little mature to play “Hand Jiving” high school students. And a few have raised eyebrows at the play's allegedly "happy" ending in which the prim and proper Sandy transforms herself into a "greaser" to ingratiate herself to Danny and his friends and become “The One that He Wants."

Vape's authors take aim at these and other issues they have with Grease. As summarized by the district court:

"Plaintiff asserts that Vape is a parody of Grease, explaining that it 'pokes 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.' In so doing, Vape, which was written and directed by women, 'reexamines Grease from a female perspective in the #MeToo era,' and ‘exposes how the ‘humor’ and rape-cultured elements of Grease have not aged well' by, for example, 'directly criticiz[ing] Grease’s ‘happy ending,’ where a woman completely changes who she is in order to please a man.' Vape also 'recognizes that modern youth still navigate complex issues relating to sex, drugs, and peer pressure – just in different forms from their 1950s counterparts.'" (Quoting from the plaintiff's complaint.)

To the defendants, Vape is nothing more than an unauthorized derivative work that uses the same characters to tell the same story as the original, albeit with some updates for an audience of millennials. The defendants also objected to Vape's use of portions of nine songs from Grease.

Below is a quick rundown of the court's analysis.

Purpose and Character of the Use. The defendants argued that Vape was not a transformative parody because it did not "comment on the substance of Grease, but rather comment[ed] on society writ large." The court disagreed, describing the defendants' characterization of Vape as "overly simplistic and incomplete." First, Vape mocks various specific elements of Grease, including absurdities in the plot line. (Example: Frenchy explains to Sandy that Rydell High School is “the one school where everybody randomly busts into choreographed song and dance, and we all look at least 30.") Second, in various places, Vape changed the script and song lyrics in order to emphasize the original's misogynistic features. For example, in Grease, Sandy forgives Danny, without comment, for treating her poorly after they are reunited at Rydell High; in Vape, when Sandy accepts Danny’s apology, she adds, “Lucky for you, society has taught me to give an unlimited amount of chances to undeserving men.” Most "crucially" (in the court's words), Vape's characters explicitly comment on Sandy’s decision to transform herself into a greaser to fit in with Danny's crowd. This dialog between Sandy and her bestie Frenchy provides one example:

The court rejected as "too narrow a view of the law" the defendants' argument that Vape could not qualify as a parody unless the plaintiff could explain how each and every element taken from Grease related to Vape’s purpose of commenting on the underlying work. Here, the commentary on Grease, often underscored by sarcastic comments from the characters, was hardly subtle. "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." And, because this case involved a parody with obvious commentary on the underlying work, it was distinguishable from Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (see this post and this post) (Warhol's use of plaintiff's photo to create magazine cover portrait of Prince was not transformative, inter alia, because the two works served the same purpose, and Warhol's portrait did not comment on or relate to the plaintiff's photo).

Nature of the Copyrighted Work. Although the second factor favored the plaintiff, the Court declined "to afford much weight to it because parodies almost invariably copy publicly known, expressive works and thus, in parody cases, this factor is not much help in determining whether the new work constitutes fair use." (Cleaned up.)

Amount and Substantiality of Portion Used. The amount of Grease used by the plaintiff was not, in the court's view, excessive:

"While the Court recognizes that Vape took substantial elements from Grease, the Court finds that the taking was not excessive because the use of those elements was necessary for Vape to achieve its parodic purpose. The authors of Vape would not have been able to communicate their critical view of Grease’s happy ending, and the manner in which Sandy completely changes who she is in order to please a man, without incorporating Sandy and Danny’s relationship and their overall plot arc into the new work. Nor would the authors of Vape have been able to ucommunicate their critical views on the plot absurdities of Grease, including the happenstance of Sandy attending Danny’s high school or the characters spontaneously breaking into choreographed song and dance, if Vape were not to allude to the setting, plot line, and music from the original work." (Cleaned Up)

To support their position that Sketchworks had taken too much, the defendants argued that the plaintiff had used "minor details" from Grease that served no transformative purpose - like the recreation of Grease's "Thunder Road" race. The court was not entirely persuaded that these elements were minor ("notable character traits and scenes from the original plot can hardly be considered 'minor'”) but determined that, in any event, Vape's authors had made significant alterations to cast these "minor" elements in a new and critical light. Take, for example, Frenchy's reaction to the road race in Vape: “Sandy, how’d you like that extremely dangerous dick-measuring contest?” Sage words from a beauty school dropout.

Effect of Use Upon Potential Market for or Value of Copyrighted Work. The potential harm to Grease’s market for derivatives is "minimal." Given its parodic nature, Vape cannot reasonably be viewed as a derivative sequel to, or remake of, Grease. "As the Supreme Court has recognized, 'there is no protectible derivative market for criticism'" (citinCampbell v. Acuff-Rose Music, Inc.).

Trademark and Right of Publicity Claims. The defendants also asserted trademark and right of publicity claims based on the plaintiff's use of the trademark "Grease" and the name of Grease co-author Jim Jacobs in a slide projected at the beginning of Vape's production that read “Based on GREASE by Jim Jacobs and Warren Casey” and in certain advertising materials. 

The court dismissed the defendants' trademark claims because the likelihood that consumers would be confused into thinking there was an association or connection between Vape and Grease was "minimal" since the plaintiff's use of the Grease trademark merely conveyed that Grease was the object of the parody and, therefore, that Vape was not an authorized production of Grease. The court also held that "the public’s interest in free speech outweighs Defendants’ interest in protecting the trademark as used in the context of Vape."

Finally, the court held that the defendants had failed to state plausibly a claim for relief for a right of publicity violation under Sections 50 and 51 of New York Civil Rights Law, which prohibits the use of a person's name or likeness, without consent, for advertising purposes or for the purposes of trade. The use of Mr. Jacob's name within the play itself was not actionable because "the law does not prohibit the nonconsensual use of an individual’s name in a form of protected First Amendment speech." And to the extent that Mr. Jacobs' name was used in marketing materials for Vape, that also was not actionable. Under the "ancillary use" exception, “advertising ... undertaken in connection with a use protected by the First Amendment falls outside the statute’s reach." 

Sketchworks Industrial Strength Comedy, Inc. v. Jacobs, No. 19-CV-7470-LTS-VF (S.D.N.Y. May 12, 2022)