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By Chris Cooke | Published on Tuesday 17 May 2022
A sketch comedy group in the US got court confirmation last week that their ‘Grease’ mocking production ‘Vape: The Musical’ is a parody of the show it is mocking and therefore isn’t infringing the copyrights in the original because of the fair use principle.
‘Vape: The Musical’ was created by Sketchworks which said that the 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”.
The comedy outfit went legal in 2019 after 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 publisher argued that ‘Vape’ was exploiting the rights in ‘Grease’, and therefore any performance of the former would require permission from the owners of the latter.
But as far as Sketchworks was concerned, its musical was covered by the fair use principle in US copyright law, meaning it did not need the permission of the ‘Grease’ publisher to create and perform its show. Its lawsuit sought court confirmation of that fact.
Concord subsequently withdrew its cease-and-desist letter, and lawyers for Jacobs and the Casey estate requested that the Sketchworks lawsuit be dismissed on the basis there was no longer an active dispute.
However, the judge overseeing the case allowed it to proceed, because neither Concord – nor Jacobs and the Casey estate – would provide formal confirmation that they wouldn’t sue if ‘Vape’ was performed.
Regarding Sketchworks’ fair use argument, the defendants countered that ‘Vape’ was more of a commentary on society at large rather than ‘Grease’ specifically, meaning the comedy group’s adaptation and exploitation of the ‘Grease’ musical was not fair use on parody grounds.
But judge Laura Swain did not concur. “Defendants overlook the manner in which ‘Vape’ mocks various specific elements of ‘Grease’, including absurdities in the plot line”, she wrote in her judgement last week.
“For example”, she went on, “early in ‘Vape’, when the play transitions from Danny and Sandy’s summer vacation at the beach to the beginning of the school year, 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’, poking fun at the more mature appearances of the actors in ‘Grease’ [the movie] and their characters’ propensity to break out into coordinated song and dance routines”.
The judge also noted the aforementioned critique of the misogynistic and sexist elements of ‘Grease’. For example, “Vape capitalises on Sandy’s decision to forgive a man who treated her badly. In ‘Vape’, she also accepts Danny’s apology, but adds, ‘Lucky for you, society has taught me to give an unlimited amount of chances to undeserving men’”.
‘Vape’ also criticises Grease’s happy ending, the judge continued, “in which Sandy decides to change herself and become a greaser in order to be in a relationship with Danny. ‘Vape’ incorporates sarcastic, new dialogue into the script to comment on Sandy’s decision”.
“Sandy tells Frenchy, ‘I want Danny back. Frenchy, I’m going to change everything about myself for him’, and Frenchy replies sarcastically, ‘That’s so great to hear. You definitely won’t regret this later … said no one ever … Let’s go to my house for this totally unnecessary makeover”.
Swain also rejected the defendants’ argument that each change to ‘Grease’ should be separately justified as a commentary on the original work, concluding that such precision is not required to conclude that ‘Vape’ at large is a parody of ‘Grease’, and therefore a fair use of the original material.
Commenting on the judgement, a legal rep for Sketchworks told Law360: “It was so immediately obvious the first time I saw ‘Vape’ that it was a fair use parody of ‘Grease’, and we are THRILLED (but not surprised) that judge Swain came to the same conclusion”.