SOFA sued over a 7-second clip of Ed Sullivan’s introductionof the Four Seasons on The Ed SullivanShow, used in a musical about the Four Seasons, Jersey Boys, to mark a moment in the band’s career. The court ofappeals affirmed the grant of summary judgment on fair use and the award ofattorneys’ fees to Dodger. “By using the clip for its biographicalsignificance, Dodger has imbued it with new meaning and did so without usurpingwhatever demand there is for the original clip.”
The clip appears at the end of the first act, just after oneof 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 screenhanging over center stage; in it, Sullivan assumes his “signature pose” andintroduces the band: “Now ladies and gentlemen, here, for all of the youngstersin the country, the Four Seasons . . . .” He turns and gestures for the audience to turnits attention to the stage. The screengoes dark, and then the actors sing.
The district court, viewing SOFA’s infringement claim asobjectively 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 markan important moment in the band’s career. “Being selected by Ed Sullivan to perform on his show was evidence ofthe band’s enduring prominence in American music. By using it as a biographicalanchor, Dodger put the clip to its own transformative ends.” The argument that the clip was merely used forits own entertainment value wasn’t supported by the record. JerseyBoys’ commerciality was therefore of little significance.
As for the nature of the work, “[w]hile the entire episodeof The Ed Sullivan Show or theindividual performances may be near to the core of copyright, the clip conveysmainly factual information – who was about to perform.” This factor alsofavored Dodger
So did the amount and substantiality of the portion used. Of course the use was quantitativelyinsignificant, but SOFA argued that Dodger “attempted to capitalize on thecentral and most beloved part of The Ed Sullivan Show, namely, Ed Sullivan’sintroduction of popular new rock and roll acts,” by incorporating the clip intothe play. This was wrong for tworeasons. First, the 7-second intro was “hardly”qualitatively significant—it was Sullivan identifying the group and the sectionof his audience to whom The Four Seasons would appeal. “It is doubtful that the clip on its own qualifiesfor copyright protection, much less as a qualitatively significant segment ofthe overall episode.” Second, Sullivan’s“trademark gesticulation and style” was uncopyrightable. “It is Sullivan’s charismatic personality thatSOFA seeks to protect. Charisma, however, is not copyrightable.”
Market effect also favored Dodger. JerseyBoys wasn’t a substitute for The EdSullivan Show; it didn’t even allow repeated viewing of the clip (not thatthis 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 useof the clip advances its own original creation without any reasonable threat toSOFA’s business model.”
Overall, “Dodger’s use of the clip did not harm SOFA’scopyright in The Ed Sullivan Show, and society’s enjoyment of Dodger’s creativeendeavor 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 iswhether it will further the purposes of the Copyright Act, to encourage theproduction of original expression for the public good. Objectiveunreasonableness is also relevant. “In light of the education SOFA received asthe plaintiff in ElvisPresley Enterprises [an earlier case], SOFA should have known from the outsetthat its chances of success in this case were slim to none.” Plus, the court ofappeals agreed that lawsuits like this one chill creativity by discouragingfair use. “When a fee award encourages adefendant to litigate a meritorious fair use claim against an unreasonableclaim of infringement, the policies of the Copyright Act are served.”
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