Tuesday, January 18, 2011

Seven seconds in heaven: Ed Sullivan clip is fair use

Sofa Entertainment Inc. v. Dodger Productions, Inc., 2010 WL 4228343 (C.D. Cal. July 12, 2010)

Dodger used a 7-second clip of the Jan. 2, 1966 Ed Sullivan Show in its 2-hour production of the play Jersey Boys, a musical based on the lives of members of the Four Seasons. Sofa licenses its library, which includes the Ed Sullivan Show. The Ed Sullivan Show at times, including Jan. 2, 1966, featured the Four Seasons, an internationally famous group in the 1960s. In the 1960s, the Ed Sullivan Show “played an important role in the success of many musical performers and groups.”

The 7-second clip shows Ed Sullivan introducing the Four Seasons, ant it’s displayed on a large screen at the end of the first act of the play. Right before the clip, an actor addresses the audience: “Around this time there was a little dust-up called The British Invasion. Britannia's ruling the air waves, so we start our own American revolution. The battle begins on Sunday night at eight o'clock and the whole world is watching.” As the actor speaks, the actors prepare themselves to perform, and old-style CBS cameras roll across the stage. The effect is that the play’s audience is backstage with the performers.

In the clip, Ed Sullivan, “striking his signature pose, introduces the Four Seasons to the studio audience: ‘Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons....’ As he concludes, Mr. Sullivan waves his left hand toward where the Four Seasons are to perform, at which point the Clip ends and the actors in Jersey Boys perform a song on stage.” The parties agreed that the clip reflected an important moment in the band’s career.

Though Jersey Boys “does not fall clearly within any of the purposes specifically identified in the statute's preamble,” the play was based on the Four Seasons’ career, based at least in part on actual events. The court considered the task of valuing the merits of a dramatization unsuited for the judiciary. Puzzlingly, though it stated that it found no justification in precedent to distinguish documentaries (favored in the fair use analysis) from dramatizations, it then concluded that “[t]here is no doubt” that Jersey Boys is a dramatic production “intended to entertain,” thus weighing against a finding of fair use. So, only boring stuff is favored? This seems a poor distinction.

Regardless, the court went on to find that the use was transformative, more than a mere re-broadcast. The court drew attention to the fact that, unlike previous cases, the parties weren’t in the same business. Nor is a voiceover or other explicit introduction required to render a use transformative, though the actor’s lines did serve to frame the transformative use. That transformative use was the citation of the clip as a historical reference point, as opposed to serving the same intrinsic entertainment value the clip did on the original show.

The use was commercial, but there was no evidence that the defendant used the clip in marketing the play. “Thus, Defendant seeks to profit in very small measure by the inherent entertainment value of Ed Sullivan's introduction of the Four Seasons. Accordingly, to the extent Defendant's use of the Clip is commercial and, as such, weighs against fair use, this aspect of the first factor is not accorded great weight.”

Nature of the work: television footage is a close call, since it is both creative and newsworthy. Also, the fact that the footage was previously broadcast weighed in defendant’s favor. The second factor weighed at least slightly in favor of fair use.

Amount and substantiality in relation to the copyrighted work as a whole. Obviously, quantitatively tiny. There’s a qualitative aspect as well, though “if the new user only copies as much as necessary for his or her intended use, this factor will not weigh against the new user.” Plaintiff (I want to say “amazingly,” but the fact that the plaintiff litigated this already tells you what you need to know there) argued that the 7-second clip was the “heart” of the work “because Ed Sullivan's introduction of musical acts was the heart of the The Ed Sullivan Show episodes in which such acts performed.” Its argument was that the clip represented “the entirety of Ed Sullivan’s creative effort with respect to that portion of the show related to the Four Seasons' performance.” Considering the evidence in the light most favorable to the plaintiff, the court couldn’t agree. A copyright owner’s own subjective view of what the “heart” is can’t be dispositive, and at most Sullivan’s intro was “an artery leading to the heart of the episode.” The performances were the heart of the show both in general and in this particular case. (Formally, the problem with plaintiff’s argument is that it doesn’t have a copyright on “Ed Sullivan’s creative effort,” but rather on an episode of the Ed Sullivan show; cf. Justin Hughes’ work on “microworks.”)

Given the defendant’s reason for using the clip—a historical reference point in a 2-hour musical—even assuming that the introduction was the “heart” of the episode, no reasonable jury could find that defendant made the clip the “heart” of the play. In the context of a far longer and more elaborate story arc, this factor weighed in favor of fair use.

Effect on the market: The market for licensing revenues may properly be considered. But the markets must be traditional, reasonable, or likely to be developed to count, and the more transformative the new work, the less likely there is to be a market effect. Now here comes some circular/double-counting/incoherent weirdness that is an unfortunate fixture of fair use market effect analysis: “Here, the fact that Defendant's use of the copyrighted material is primarily for purposes of entertainment, which is not a use to which the fair use defense traditionally is extended, may contribute to this factor weighing against fair use.” (Because that is connected to market effect, how?) And to the extent that the use of the clip is commercial, that weighs against fair use. But, given that the clip is part of a full-length stage show, “the marketability of Jersey Boys (its ‘commercial’ aspect) cannot reasonably be said to be primarily dependent on Defendant's transformative use of the Clip. It follows that the extent to which Defendant stands to profit specifically from the use of the Clip itself is minimal.”

Plaintiff offered only one declaration in support of its position that the clip harmed an existing or potential market. The declaration attested that plaintiff licenses clips for use in film, TV, and other media, and that defendant’s type of use would have a severe effect on plaintiff’s licensing market. “Plaintiff introduces no evidence demonstrating that it currently licenses (or plans to license) the Clip, and the Court agrees with Defendant that the notion that any such market could ever materialize is speculative at best.” A reasonable jury couldn’t view the evidence as sufficient to establish that the use of the clip in Jersey Boys substitutes for the original clip. “In light of the lack of evidence of an existing or potential market for the Clip, this factor weighs in Defendant's favor.”

Weighing the factors, though the purpose of the use weighed in the plaintiff’s favor, the use was still “decidedly transformative,” and the other factors favored fair use, so as a matter of law this was fair use.

Ladies and gentlemen, I think we have a new poster child for the argument that copyright owners, by litigating over the most trivial of fair uses, have made fair use substantially less useful.

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