Ninth Circuit affirms Summary Judgment of Fair Use, Attorneys' Fees for Using a Seven Second "Ed Sullivan" Clip in "Jersey Boys"

Today the U.S. Court of Appeals for the Ninth Circuit issued a good fair use opinion in SOFA Entertainment, Inc. v. Dodger Productions, Inc.  The defendants used a seven second "Ed Sullivan" clip in the musical "Jersey Boys" as a point of historical reference.  The clip was just of Ed Sullivan introducing the Four Seasons band, at a time when the "British Invasion" was threatening to swamp American bands.  The musical used the clip as an historical reference to note the band's success despite the changing social times of the mid-1960's.

The Ninth Circuit affirmed a summary judgment for the defendants on the fair use defense, and also affirmed an award of attorneys' fees for the defendants. 

The Court began by noting the purposes of Copyright:

The Copyright Act exists “‘to stimulate artistic creativity for the general public good.’” Mattel, Inc. v. MGA Entm’t, Inc., –F.3d–, 2013 WL 264645, at *2 (9th Cir. Jan. 24, 2013) (quoting Twentieth Century Music Corp v. Aiken, 422 U.S. 151, 156 (1975)). It does so by granting authors a “special reward” in the form of a limited monopoly over their works. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985). However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. Stewart v. Abend, 495 U.S. 207, 236 (1990). To avoid that perverse result, Congress codified the doctrine of fair use. Id.

Applying the four fair use factors, the court found that the first factor was present because the musical used the short clip as a biographical anchor.  The second factor was present since the clip was mainly factual, who was about to perform.  The fourth factor was present since "Jersey Boys" is hardly an economic substitute for "The Ed Sullivan Show."  As to the third factor, the court stated:

. . . the seven-second introduction is hardly qualitatively significant. Sullivan simply identifies the group that is about to perform 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.

In affirming the attorneys' fee award, the Court had this to say:

In light of the education SOFA received as the plaintiff in Elvis Presley Enterprises, SOFA should have known from the outset that its chances of success in this case were slim to none. Moreover, we agree with the district court that “lawsuits of this nature . . . have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones.” The fair use doctrine is an integral part of copyright law precisely because it gives authors “breathing space within the confines of copyright” to build upon their predecessors’ works. Campbell, 510 U.S. at 579. 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. Fogerty, 510 U.S. at 527. Therefore, we conclude that the district court’s award of attorney fees to Dodger was justified.