Jersey Boys' use of Ed Sullivan Clip is fair use

Last week, in an interesting (and rare) theatre law case,  the 9th Circuit Court of Appeals affirmed a district court's judgment in favor of the company producing the Broadway hit musical  Jersey Boys.  SOFA Entertainment, Inc., owner of the Ed Sullivan Show footage had sued Broadway Producers , Dodger productions, Inc.,  over the show's use of a 7-second clip from a January 1966 episode in which Sullivan introduced the pop singing group.

The Court, in its ruling expressed skepticism over the plaintiff's position, and conducted the usual fair use analysis

Four Fair Use Factors:

Purpose and Character of the alleged infringing use.

Interestingly, the 9th circuit followed the trend of courts in such case to focus this examination on whether the use was “transformative,  holding that it was, since the use was incorporated into the musical as a “historical anchor”  pointing to “an important moment in the band's career

The Nature of the Copyrighted Work

On this second factor, the Court rejected SOFA's claim that Sullivan's “trademark gesticulation and style” were themselves entitled to copyright protection, going on to hold that it was actually “doubtful” that the brief clip is entitled to copyright protection. (a point with which I disagree and find troubling.  The court didn't need to go this far to reach its ultimate conclusion.)

The Amount and Substantiality of the Portion Used

Here is where SOFA's case really falls apart.  In fact, the plaintiff even conceded that the clip used was not quantitatively significant, but instead argued that it included “one of the central and most beloved parts of the Ed Sullivan Show”.  The Court didn't buy it, holding that the footage didn't contain any “qualitatively significant expression”.

Impact on the Market for the Original

The court kept it brief, finding that this factor favored a finding of Fair Use because  “Jersey Boys is not a substitute for the Ed Sullivan Show”, essentially ignoring the argument that SOFA's business is founded on obtaining fees for licensing content from its extensive library.  (Sofa had presented almost no evidence on this point in its pleadings).

Award of Attorney Fees

The Court also affirmed the district court's order granting attorneys' fees to Dodger.  The Court found that SOFA should have known that it had little chance of success.

This case, though straying a bit from current copyright jurisprudence, does seem to continue the trend toward requiring copyright owners to consider carefully before pursuing questionable  claims.

Read the full opinion here.

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