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Fair use case over ‘Grease’ parody can proceed, court rules

By | Published on Tuesday 6 April 2021


A court in New York last week declined to dismiss a lawsuit that seeks clarification on whether a ‘Grease’ mocking comedy show called ‘Vape: The Musical’ is covered by the fair use principle, or whether it actually infringes the copyright in the musical it is spoofing. The owners of the ‘Grease’ copyright wanted the case dismissed on the basis there wasn’t sufficient controversy for the court to intervene.

The company behind ‘Vape: The Musical’ – comedy group Sketchworks – say that their show “uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of ‘Grease’ and to criticise its misogynistic and sexist elements”.

According to a lawsuit filed by Sketchworks in 2019, when it announced some New York performances of ‘Vape: The Musical’, it received a cease-and-desist letter from the theatrical division of music publisher Concord, which reps the rights in ‘Grease’ on behalf of its creators Jim Jacobs and the late Warren Casey. The letter was also sent to the theatre due to host the show, which seemingly cancelled the performances as a result.

Sketchworks argues that its show, as a parody of the original, is protected by the fair use principle under US copyright law. Which would mean it could perform its show without getting permission from Concord, Jacobs or the Casey estate, and would not be liable for any copyright infringement.

However, the comedy group adds, when it presented those arguments to a legal rep for Jacobs and Casey they were rebuffed. To that end, the 2019 legal filing sought “a declaratory judgment of fair use so that [Sketchworks] may perform and otherwise exploit ‘Vape’ without further delay”.

After that legal filing had been made, Concord officially withdrew its cease-and-desist letter. Lawyers for Jacobs and Casey then requested that the Sketchworks lawsuit be dismissed, because – with no active cease and desist letter in play – there was no actual controversy here, which meant the court did not have “subject matter jurisdiction”.

However, last week the court knocked back that request for dismissal. Although the cease-and-desist letter has been withdrawn – and, it’s alleged, was sent by Concord without the knowledge of the lawyer who advises Jacobs and the Casey estate on copyright matters – the ‘Grease’ creators and publisher have neverthelesss declined to provide Sketchworks with any formal confirmation that they would not sue if performances of ‘Vape: The Musical’ went ahead.

And in an earlier hearing on this case, the ‘Grease’ side said they were “uncertain” whether any subsequent infringement action might be taken if the Sketchworks did indeed present its show.

With all that in mind, the court stated last week: “Plaintiff has carried its burden of demonstrating that there is an actual controversy in light of plaintiff’s reasonable apprehension of litigation (and threat by defendants), defendant’s refusal to sign a covenant not to sue, and plaintiff’s injuries from the cease-and-desist letter (regardless of whether it was unauthorised and subsequently withdrawn)”.

Welcoming that decision, a legal rep for Sketchworks told Law360 that his client was “pleased that the court agreed that there is subject matter jurisdiction, and is hopeful that the court will promptly declare that ‘Vape’ constitutes fair use so that Sketchworks can resume performances of its parody of ‘Grease'”.