SOFA sued over a 7-second clip of Ed Sullivan’s introduction
of the Four Seasons on The Ed Sullivan
Show, used in a musical about the Four Seasons, Jersey Boys, to mark a moment in the band’s career. The court of
appeals affirmed the grant of summary judgment on fair use and the award of
attorneys’ fees to Dodger. “By using the clip for its biographical
significance, Dodger has imbued it with new meaning and did so without usurping
whatever demand there is for the original clip.”
The clip appears at the end of the first act, just after one
of the band members addresses the audience and explains that the band is contending with the British Invasion, appearing on television with the "whole world" watching: The clip is shown on a screen
hanging over center stage; in it, Sullivan assumes his “signature pose” and
introduces the band: “Now ladies and gentlemen, here, for all of the youngsters
in the country, the Four Seasons . . . .” He turns and gestures for the audience to turn
its attention to the stage. The screen
goes dark, and then the actors sing.
The district court, viewing SOFA’s infringement claim as
objectively unreasonable and chilling of the creativity of others, awarded
$155,000 in attorneys’ fees and costs.
Many fair use cases involve subtle and refined distinctions; “[f]ortunately,
this is not one of those cases.”
First, the use was transformative: it used the clip to mark
an important moment in the band’s career.
“Being selected by Ed Sullivan to perform on his show was evidence of
the band’s enduring prominence in American music. By using it as a biographical
anchor, Dodger put the clip to its own transformative ends.” The argument that the clip was merely used for
its own entertainment value wasn’t supported by the record. Jersey
Boys’ commerciality was therefore of little significance.
As for the nature of the work, “[w]hile the entire episode
of The Ed Sullivan Show or the
individual performances may be near to the core of copyright, the clip conveys
mainly factual information – who was about to perform.” This factor also
favored Dodger
So did the amount and substantiality of the portion used. Of course the use was quantitatively
insignificant, but SOFA argued that Dodger “attempted to capitalize on the
central and most beloved part of The Ed Sullivan Show, namely, Ed Sullivan’s
introduction of popular new rock and roll acts,” by incorporating the clip into
the play. This was wrong for two
reasons. First, the 7-second intro was “hardly”
qualitatively significant—it was Sullivan identifying the group and the section
of his audience to whom The Four Seasons would appeal. “It is doubtful that the clip on its own qualifies
for copyright protection, much less as a qualitatively significant segment of
the overall episode.” Second, Sullivan’s
“trademark gesticulation and style” was uncopyrightable. “It is Sullivan’s charismatic personality that
SOFA seeks to protect. Charisma, however, is not copyrightable.”
Market effect also favored Dodger. Jersey
Boys wasn’t a substitute for The Ed
Sullivan Show; it didn’t even allow repeated viewing of the clip (not that
this would matter, as indicated by the court’s invocation of, among others, Ty v. Publications Int’l and Bill Graham Archives v. Dorling Kindersley,
both cases about books). “Dodger’s use
of the clip advances its own original creation without any reasonable threat to
SOFA’s business model.”
Overall, “Dodger’s use of the clip did not harm SOFA’s
copyright in The Ed Sullivan Show, and society’s enjoyment of Dodger’s creative
endeavor is enhanced with its inclusion. This case is a good example of why the
‘fair use’ doctrine exists.”
Fees: the most important consideration in a fee award is
whether it will further the purposes of the Copyright Act, to encourage the
production of original expression for the public good. Objective
unreasonableness is also relevant. “In light of the education SOFA received as
the plaintiff in Elvis
Presley Enterprises [an earlier case], SOFA should have known from the outset
that its chances of success in this case were slim to none.” Plus, the court of
appeals agreed that lawsuits like this one chill creativity by discouraging
fair use. “When a fee award encourages a
defendant to litigate a meritorious fair use claim against an unreasonable
claim of infringement, the policies of the Copyright Act are served.”
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