In Sofa Entertainment Inc. v. Dodger Productions, Inc., 2010 WL 4228343 (C.D. Cal. July 12, 2010), a seven-second video clip from The Ed Sullivan Show was used in the play Jersey Boys without permission. Jersey Boys is the story of The Four Seasons, a rock bank led by Frankie Vallie. The Jersey Boys got a critical boost from playing numerous times on The Ed Sullivan Show.
It was undisputed that the clip depicted an important moment in the career of the Four Seasons.
Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Factor 1. Purpose and character of use. In the Jersey Boys case, the parties disputed whether the work was a fictionalized account or a biography of the Four Seasons, since this would have an effect on the first factor. The court found that Jersey Boys was meant to entertain, whether or not it was biographical. This factor weighed in Plaintiff's favor.
Factor 2. Transformative use. The court found a transformative use because the clip was used merely as an historical reference point in a play. It did not serve the same entertainment purpose as the original Ed Sullivan Show appearance of the Four Seasons. This factor weighed in Defendant's favor.
Factor 1. Commercial use. Although the court found the use to be commercial, the transformative use and the very short amount borrowed rendered the commercial use slight and not to be accorded great weight.
Factor 3. Amount and substantiality of portion used. The court found that Jersey Boys did not borrow the "heart" of the original work: The Four Seasons' performance, but merely borrowed Ed Sullivan's introduction, which was not the heart of the underlying work. The court found the performances by featured talent to be the "heart" of these shows.
Factor 4. The court found that there was no evidence of a market for the clip and that use of the clip, which did not contain the original Four Seasons' performance, was not a commercial substitute for the underlying work, which contained the Four Seasons' performance. Given the lack of market evidence, this factor weighted against the Plaintiff.
Weighing and balancing the factors, the court found that use of the clip was "fair use". On Sept. 29 2010, an appeal was filed before the Ninth Circuit that is still pending.
More on the fair use doctrine here
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
