Court Rules That Jersey Boys’ Use Of 7-Second Clip From The Ed Sullivan Show Is Fair Use

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

On March 11, 2013, the United States Court of Appeals for the Ninth Circuit affirmed the district court's judgment and award of attorneys' fees in favor of the company that produced the Broadway musical hit Jersey Boys. The company had been sued for copyright infringement for including in the musical a 7-second clip from a January 2, 1966 episode of The Ed Sullivan Show in which Ed Sullivan introduces the Four Seasons.

In holding that the producer's use of the clip constituted fair use as a matter of law, the Ninth Circuit did not hide its deep skepticism of the interests of the plaintiff, SOFA Entertainment, Inc. ("SOFA"). The court observed that while the Copyright Act grants authors a "limited monopoly over their works" in order to foster creativity, "an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite."

Several points about the Ninth Circuit's application of the four-factor test for fair use are worth exploring.

Purpose and Character of the Use

In analyzing the first factor, the court, following a common trend in cases grappling with fair use, jumped directly to the question of whether the use of the clip was "transformative." The court held that by using the Ed Sullivan introduction as a "biographical anchor" to mark an "important moment in the band's career," the producer "put the clip to its own transformative ends." In support of that holding, the court relied on Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir. 2003) and Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006).

The court's reliance on the Elvis case is particularly noteworthy.In that case, owners of copyrighted materials relating to Elvis Presley, including SOFA (a point not lost on the Ninth Circuit, as discussed below), sued the producer of a 16-hour video documentary covering the life of Elvis that incorporated many copyrighted video clips of The Ed Sullivan Show and other programs without authorization. Although you would not know it from reading the Jersey Boys decision (this blogger certainly did not), SOFA and the other plaintiffs actually prevailed in that lawsuit, with the Ninth Circuit affirming the lower court's grant of a preliminary injunction against the filmmaker.Elvis Presley Enters., 349 F.3d at 911. However, the Ninth Circuit noted that its decision...