Jersey Boys’ Use of the Ed Sullivan Clip Qualifies as a Fair Use

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Plaintiff SOFA Entertainment, owner of the licensing rights to the “Ed Sullivan Show”, was attending the Broadway show Jersey Boys when he noticed that a seven second clip from the “Ed Sullivan Show” appeared in the show.  The Jersey Boys show is loosely based on the Four Seasons band and the lives of its members.  The seven second clip featured the Four Seasons band getting ready for their “Ed Sullivan Show” performance.  After the show ended, plaintiff filed a copyright infringement suit against the Jersey Boys producers.

The Ninth Circuit disagreed with plaintiff and found that the clip in the Jersey Boys show constituted a fair use.  First, the purpose and character of the use was “transformative” because it added something new to the clip’s original meaning or message.  The clip was not shown for entertainment value.  Instead, it was shown to provide a reference point in rock and roll history.

Second, this reference point conveyed a fact, specifically, that the band was on the “Ed Sullivan Show.”  Because the clip was not display creative content, this factor also weighed in favor of fair use.

Third, the seven second clip was not a qualitatively significant portion of that episode of the “Ed Sullivan Show” and the clip was not copyrightable in itself because El Sullivan’s shtick was merely part of his personality and thus re not copyrightable.

Finally, the Ninth Circuit found that the clip was unlikely to negatively impact the market for the “Ed Sullivan Show” because Jersey Boys merchandise does not include the clip.  Thus, audience members would not be repeatedly exposed to the clip.  Because all four factors weighed in favor of the producers, the Ninth Circuit affirmed the district court’s finding that the “Ed Sullivan Show” clip as it appeared in the Jersey Boys Broadway show constituted fair use.

It is important to note that the Ninth Circuit affirmed the award of attorneys’ fees to the producers.  The Copyright Act permits an award of attorneys’ fees if the award will further the purpose of the Copyright Act.  Here, plaintiff had litigated similar issues against a different third party and lost.  Because plaintiff should have known that its copyright claim would fail and its suit had a chilling effect on fair use, the Ninth Circuit upheld the producers’ award for attorneys’ fees.

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