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IP/Entertainment Case Law Updates

Red Label Music Publishing v. Chila Productions

District court grants summary judgment in favor of defendants, finding documentary film’s use of snippets of famous 1985 Chicago Bears Super Bowl Shuffle music video was fair use.

The 1985 Chicago Bears were the first sports team ever to record a hip-hop song, the Super Bowl Shuffle. They rapped and shuffled their way to a historic 46-10 victory over the New England Patriots in Super Bowl XX. 

Plaintiffs owns the copyrights to the words, music, sound recording, and video of the Super Bowl Shuffle, and sued defendants for the unauthorized use of the Super Bowl Shuffle in the documentary ’85: The Greatest Team in Football History.

Defendants moved for judgment on the pleadings or, in the alternative, for summary judgment on their fair use defense. The plaintiffs moved to strike defendants’ fair use affirmative defenses and opposed summary judgment on the merits. 

The court denied the plaintiffs’ motion to strike, finding that as to certain defendants, it was untimely, and that as a general matter, Rule 12(f) applies only to insufficient defenses, which fair use is not in a copyright infringement case.

As to the substantive motion for summary judgment on fair use, the court analyzed the four fair use factors as enumerated in the Copyright Act: “(1) the purpose and character of the use … ; (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.”

As to the first factor, the purpose and character of the use, which includes the consideration of whether such use is of a commercial nature or is for nonprofit educational purposes, the court found that “the purpose and character of the documentary [was] to comment on the sport-social phenomenon that was the 1985 Chicago Bears.” The court found that this purpose differed from the work’s original purpose, adding that “[t]his kind of historical commentary that documentary filmmakers often produce adds something new to a music video that was originally intended to entertain and raise money.” 

Further evidence that the first fair use factor weighed in favor of defendants included the fact that (i) filmmakers used the song for eight seconds in the 100-minute documentary, only four of which contain lyrics, (ii) that the documentary does not use any of the famous players’ individual verses in the song (which the court commented were the most distinctive aspect of the Super Bowl Shuffle), (iii) that the film does not play the chorus in its entirety, (iv) that the video portions comprise 59 seconds total of the film, broken up into 16 separate clips that last between one and eight seconds, only one of which includes music, and (v) that the song’s title, the Super Bowl Shuffle, never appears in the relevant clips. These points also supported the court’s conclusion that the third fair use factor, the amount and substantiality of the portion used, weighed in favor of defendants, as the amount used totaled a small portion of the Shuffle (17%) and an even smaller portion of the documentary (1%).

Further, the court found the fact that defendants produced the documentary for commercial gain unpersuasive because “the alleged infringement [does not] substitute for the copyrighted work in the market.” The court added that because the music video clips appear sparingly, they do not themselves provide commercial gain to defendant filmmakers.

The court found the second fair use factor, the nature of the copyrighted work, “not at all useful” because the documentary “is complementing — not supplanting — the Super Bowl Shuffle … .” With respect to the fourth fair use factor, market effect, which the court explained is “usually the most important of the four,” the court found that the plaintiffs did demonstrate a market for clips of the Super Bowl Shuffle, that the value of plaintiffs’ copyright “may have suffered a little damage” and “widespread use of similar unlicensed experts could cause substantial harm to the potential market.” Nevertheless, the court held that this was not dispositive as “[t]he relevant market that fair use concerns itself with is ‘the market for plaintiffs’ “expression,”’ and thus it is the effect of [the] defendants’ use of that expression on [the] plaintiffs’ market that matters, not the effect of [the] defendants’ work as a whole.” Because defendants’ film was not a “competing substitute” for plaintiffs’ original work or a derivative thereof, but a licensing market did exist, the court held the fourth fair use factor to be neutral, yet explained in a footnote that “[e]ven assuming for the sake of argument that factor four weighed in the plaintiffs’ favor, it would still be insufficient to overcome the substantial weight of the other factors.”

Because the first and third factors weighed in defendants’ favor and the second and fourth factors were neutral, the court found defendants’ use to be fair, and it granted defendants’ motion for summary judgment.