Prof. Randal C. Picker, University of Chicago Law School
February 10, 2016

For roughly the last two years, I have been taking improv classes, first at Chicago’s legendary Second City and more recently at iO (equally well-known in the comedy community but probably less well-known to the general public; iO used to be known as ImprovOlympic, until Stephen Colbert’s lawyer brother came after it on behalf of the Olympics).  I will sound as if I have joined a cult if you get me to talk about improv, but I will just say that it is an activity with many virtues (I describe it, at its core, as pure creativity plus listening practice and we can always do with better listeners).

Chicago has an incredibly rich improv and sketch community and it traces its roots, somewhat surprisingly, to my home, Hyde Park.  Janet Coleman’s great book on The Compass theater sets out this history at The University of Chicago in 1955.  Mike Nichols was then an undergraduate in The College, and Nichols, along with Elaine May and others, invented improv in the United States as Nichols and May quickly became famous (and you can find them on YouTube today).

The Compass came and went, but by 1959, Second City itself commenced where it continues to thrive. And now, just this year, improv has returned to Hyde Park with a new theater, named, appropriately enough, The Revival and I have a show there on Friday, Feb. 26 (tickets here for those of you willing to fly to Chicago).

I have approached this undertaking, unsurprisingly, with an eye on copyright.  The last two years have embedded me in a particular creative and performance art scene and, as to law at least, that is first and foremost the realm of copyright.  We should get our nomenclature down first, separating sketch from improv and short-form improv from long-form improv.  Sketch is pre-written and performed as one would a written play.  Most of the work on the Second City mainstages is sketch, though typically written through an improv process.  That means that there is a script and that of course is a standard copyrighted work (recall Section 102(a), which focuses on an original work of authorship fixed in a tangible medium of expression).

Improvised shows are just that: made up on the spot with no advance planning.  That said, there is often a structure in which improv takes place, whether that is the types of games that you might see on Whose Line Is It Anyway? – short-form improv – or structures such as iO’s The Harold or Armando, which are intended to allow for longer, integrated improvised pieces (a Harold might run 25 minutes, while an Armando might be 45 minutes).  In long-form improv, characters are created on the spot and may come and go throughout the piece.  (My show at The Revival will be a modified version of Armando and you can see a version of that here; watch just the first eight minutes or so and then mentally substitute me for Amy Poehler, my colleague Prof. Douglas Baird for Tina Fey, and then reduce your expectations by a factor of 100.)

But that description suggests cleaner lines than actually exist in practice and both improv and sketch can give rise to intellectual property issues.  Improv students take classes but also perform.  To whom you might ask?  Improv students need to attract an audience, ideally more than just fellow improvisers. One natural way to do that is to tap into an existing set of characters or a genre that people love. Perhaps the best example of this is iO’s Improvised Shakespeare, which is, as they put it “a two-act fully improvised play in Elizabethan style using the language and themes of William Shakespeare, inspired by one audience suggestion (a title for a play that has yet to be written).”

The people doing Improvised Shakespeare are pros (and see this recent review in The New York Times if you have any doubt about that).  And using Shakespeare, directly or indirectly, raises no copyright issues given how old it is.  But what about Improvised Star Trek?  Improvised James Bond?  Improvised The Twilight Zone?  The list goes on and on, and while Hamlet is in the public domain, the others are not.  As the recent Sherlock Holmes litigation makes clear, fictional characters are generally copyrightable, though tricky questions can arise for older characters.

Most of this is sufficiently invisible and small that it is not likely to create problems, much like the world of fan fiction.  That isn’t to say that problems won’t arise.  The Under the Gun Theater, a newish Chicago comedy theater, ran into a problem when it was basing a show on the Cards Against Humanity game and it is often easier in the face of a challenge to reconfigure rather than fight.

But sometimes people want to fight, especially when they are representing themselves, as the recent Second Circuit decision in Keeling v. Hars (Oct. 30, 2015) makes clear.  Keeling developed Point Break Live!, what the court describes as a parody stage adaptation of the movie Point Break.  The dialogue in the show is taken directly from the movie and a variety of what the court calls “humorous theatrical devices” – kiddie pools, squirt guns and more – are used to suggest various parts of the film.

You might think that the copyright fight would be between copyright holders for the film and Keeling but parody is a good example of a transformational use and that often validates a challenged use as a fair use protected under Section 107 of the Copyright Act.  Instead, a dispute emerged between Keeling and Eve Hars, who ran the theater where Point Break Live! was being staged initially.  Hars concluded that nothing that Keeling had done was copyrightable and so booted Keeling and set up her own version of the live show.

Keeling eventually sued claiming a copyright in Point Break Live!, succeeded in federal district court, and won a jury verdict of $250,000 (big money to be sure in the world of improv and sketch comedy). And in October, the federal appeals court affirmed that judgment.  The fact that Keeling had to rely on fair use in the uses that she was making of the underlying movie didn’t block her from receiving a copyright in her independent contributions in Point Break Live!.  The real question was whether what she had done herself met the standard for copyrightability and her selections from the movie script to build the stage parody sufficed for that.

Use of copyrighted works by fans and students are likely to not create real problems, especially when there is no money floating around.  If you believe in comedy – and I do – you should want to see the nurturing of future stars that occurs at places like Second City and iO and it helps to have an audience to do that, even for student shows.  Step beyond that – move to turn an online encyclopedia of Harry Potter spells into a book for sale or move to make a crowdfunded prequel to Star Trek – and you should expect problems.  But for now my major problem is getting through 60 minutes at The Revival on Friday, February 26, at 9:30 p.m.  See you there.