- The U.S. District Court for the Central District of California held that the display of a seven-second video clip from the Ed Sullivan Show during performances of the musical Jersey Boys was non-infringing fair use.
Defendant Dodger Productions, Inc. (“Dodger”) is the producer of Jersey Boys, a musical based on the lives of various members of the musical group the Four Seasons (the “Musical”). The Musical, a two-hour dramatic work, tells the story of the Four Seasons’ rise to fame and at times incorporates historical footage as part of the performance. At the end of the Musical’s first act, a seven-second clip of a January 2, 1966 episode of Ed Sullivan – featuring Ed Sullivan introducing the Four Seasons – plays on a large screen (the “Clip”). Immediately before the Clip, the Musical’s actors are seen preparing to perform on stage as old-style CBS cameras roll across the stage. In the Clip, Ed Sullivan can be seen striking his signature pose and introducing the band: “Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons. . . .” As Mr. Sullivan waves his hands toward the band, the Clip ends, and the actors in the Musical begin to perform.
Dodger did not license the Clip from Sofa for use in the Musical. In 2008, Sofa filed a complaint against Dodger alleging copyright infringement for the unauthorized use of the Clip. In September 2009, Dodger filed a summary judgment motion on the basis of its “fair use” affirmative defense. Sofa also moved for summary judgment on various issues, including ownership and unauthorized copying.
In assessing Dodger’s claim of fair use, the District Court turned to the four statutory fair use factors set forth in 17 U.S.C. § 107. When analyzing the first factor – purpose and character of the use – the District Court noted that there were three different considerations subsumed within the first factor: the general purpose or character of the use, whether the use was “transformative” and whether the use was commercial in nature. The Court held that the Musical is a dramatic production intended to entertain, which weighed in favor of Plaintiff Sofa. However, the Court went onto to find that the use of the Clip in the Musical was transformative, as it served as a historical reference in the Four Seasons’ career and did not serve the same intrinsic entertainment value as the Clip, which weighed in favor of fair use. In addition, the Court found that the Musical is properly characterized as a commercial endeavor, but because Dodger’s seven-second Clip only featured Ed Sullivan’s introductory remarks and there was no evidence that Dodger used the Clip in the marketing of the Musical, the commercial nature of the use was not accorded great weight.
In analyzing the second “fair use” factor – the nature of the copyrighted work – the Court noted that it was a close call whether television footage was creative in nature or more properly characterized as newsworthy events. It did, however, find that the fact that the episode of the Ed Sullivan Show at issue had already aired tipped the second factor slightly in Dodger’s favor.
For the third “fair use” factor, the Court considered the amount and substantiality of the portion of the Clip used in relation to the copyrighted work as a whole. The Court rejected Sofa’s argument that the “heart” of the Ed Sullivan Show was Ed Sullivan’s introduction of musical acts, and instead found that the heart of the show was the musical acts themselves. In addition, the Court noted that the Clip was a brief historical reference in a two-hour musical production. Therefore, the Court found that the third factor weighed in Dodger’s favor.
Finally, the Court examined the fourth “fair use” factor – the effect of the use upon the potential market for or value of the copyrighted work. In other words, the Court considered whether the unauthorized use competes for a share of the market for the original work. The Court first acknowledged that two facts – that the Clip was used for primarily entertainment and the use was commercial – weighed against a finding of fair use for the fourth factor. Ultimately, however, the Court found that the fourth factor weighed in favor of fair use as Sofa introduced no evidence demonstrating that it currently licenses (or plans to license) the Clip, and the Court agreed with Defendant that the notion that any such market could ever materialize was speculative at best.
After addressing each individual factor, the Court proceeded to weigh the factors in light of the purposes of copyright. The Court found that there were components in the first factor that weighed for both Sofa and Dodger. As the three remaining factors weighed in favor of fair use, the Court held that Dodger’s use of the Clip qualified as “fair use.” As this finding was dispositive, the Court declined to rule on plaintiff’s motion for summary judgment.