Earlier this month, New York federal district court Judge Laura Taylor Swain denied a motion to dismiss a case filed by Sketchworks Industrial Strength Comedy Inc. seeking to obtain the court’s preemptive declaration that its musical Vape, which it created as an alleged parody of the musical Grease, constitutes “fair use” and is therefore not copyright infringement of Grease.
The copyright owners of Grease had argued to the court that the case should be thrown out because there was no controversy at issue. However, the judge noted 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, and that Sketchworks was told by an attorney for the playwright of Grease that no fair use existed. As a result of the pushback by the copyright holder representative, Sketchworks had cancelled 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.
Vape, which includes songs like “Summer Snaps” about modern day online app-based dating, according to its creators, “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 misogynic and sexist elements.” Vape is comparatively described by Grease’s copyright holders as a musical that uses “music, digitally copied note for note from 9 copyrighted songs from the play and movie of Grease, [and] the use of the identical names of the characters . . . and locations . . . and other plot, structure, issues, themes and imagery of Grease.”
The federal court found that even though the Grease copyright holders had withdrawn their cease-and-desist letter after the lawsuit was brought, the copyright holders would not provide a covenant not to sue and a release despite Sketchworks request for them, and as such the matter was not moot. The court found that it thus has subject matter jurisdiction to hear the case since the threat of litigation against Sketchworks was still a potential, especially since the copyright owners said that they were “uncertain” about whether they would bring a future claim for copyright infringement if live performances of Vape were to resume.
The copyright owners argued to the court that without actual set future performances, there is no “controversy” on which the court can rule over at present. In response, the Vape creators successfully argued that their stage play was not merely hypothetical, but was created and previously performed, and that the future plan for additional performances in New York prior to receiving the cease-and-desist letter made a controversy existent for purposes of case evaluation.
Following the ruling, the case will move forward on the merits of the claim as to whether Vape constitutes fair use and thus is found to be non-infringement of Grease’s copyright.
The case is Sketchworks Industrial Strength Comedy Inc. v. Jacobs et al., case number 1:19-cv-07470 currently pending in the United States District Court for the Southern District of New York.