NY Court Deems “Vape: The Musical” a Fair Use Parody of “Grease”

Steven T. Lowe

On May 12, 2022, a sketch comedy group successfully convinced a United States District Court Judge in the Southern District of New York that its play “Vape: The Musical” was a “fair use” parody of the film version; of the musical “Grease.” Plaintiff’s motion for judgment on the pleadings was granted in its entirety, and Defendants’ cross-motion was denied. The Court held that the musical play “Vape” constitutes a protected parody of the 1978 film version of the musical “Grease.”

After the ruling, Sketchworks’ attorney, Jordan Greenberger of J. Greenberger PLLC, said that “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.”

While the “Grease” stage play is about teenagers from the 1950s who smoke cigarettes and admire a sports car called ‘Greased Lightnin,’ the comedy group said the modern teenagers in “Vape” inhale e-cigarettes. The automobile at the center of the action is dubbed “Prius Lightning.” “Vape” uses millennial slang, popular culture, and a modern lens to comment upon the plot, structure, issues, and themes of “Grease” and to criticize its misogynistic and sexist elements.

Sketchworks filed a preemptive strike against “Grease” owners in 2019, seeking a “declaratory judgment” that “Vape” is protected by the “fair use doctrine.” This doctrine allows the use of certain copyrighted material for purposes of criticism, commentary, parody, and more.  The comedy group said it got a cease-and-desist letter from a representative of the owners of the original “Grease” play. Unfortunately, amid the exchange of correspondence, Manhattan’s Improv Asylum NYC theater canceled planned performances of the play. Furthermore, the “Grease” playwrights contacted them after the performances had been canceled and rejected their assertion of fair use protection.

Despite the defendant’s argument that “Vape” wasn’t a commentary on “Grease” but rather on society at large and that Sketchworks failed to justify why the comedy group used the popular musical, District Judge Laura Taylor Swain found that “Vape” did not infringe upon the copyright in “Grease.” The Judge further held that “defendants overlooked the manner in which ‘Vape’ mocks various specific elements of ‘Grease,’ like the plot line absurdities.”

The Judge was further unmoved by the defendants’ “narrow” interpretation of copyright law and their view that each change from the original required an explanation. She said, “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.”

In April 2021, Judge Swain rejected the defendants’ argument that their withdrawal of the cease-and-desist letter meant there was no case. The Judge found at the time that the threat of litigation still hung in the air because the defendants said they might bring a future claim for copyright infringement if live performances of “Vape” resumed, and they did not waive any right to make such a claim.

Sketchworks are represented by Jordan Greenberger of J. Greenberger PLLC.

Jacobs, the defendant, is represented by Howard J. Schwartz of Gearhart Law. 

The case is Sketchworks Industrial Strength Comedy Inc. v. Jacobs et al., case number 1:19-cv-07470, in the U.S. District Court for the Southern District of New York.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

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