Dodger Productions and Dodger Theatricals (“Dodger”) produced the musical Jersey Boys, a historical dramatization about the musical group, the Four Seasons, and the lives of its members. The musical uses a seven-second clip from a 1966 episode of The Ed Sullivan Show.
SOFA Entertainment owns the copyright in all the episodes of The Ed Sullivan Show as part of its film library which SOFA licenses for a fee. Dodger obtained no license and paid no fee for its use of the clip. SOFA sued for copyright infringement. The court decided that Jersey Boys use of the clip qualified as a fair use and SOFA lost the lawsuit. Not only did SOFA lose the lawsuit, but SOFA lost the lawsuit in a big way!
How Jersey Boys Uses The Ed Sullivan Show Clip
Specifically, the seven second clip shows host, Ed Sullivan, introducing the January 2, 1966 performance of the Four Seasons. That 1966 appearance on The Ed Sullivan Show was a turning point for the Four Seasons. During the musical production, the clip plays on a screen while one of the live-stage actors tells the audience about the relevance of that television appearance. After the seven-second clip finishes, the live-stage actors perform Dawn, one of the Four Seasons’ signature songs.
Lesson One – Short, Transformative Uses Are Likely to Be Fair Use
I am a believer in strong copyright laws that protect copyright owners. I also believe that the court was correct to characterize Jersey Boys use as a fair use. My reasons for agreeing with the court’s fair use determination include the following:
- the clip was short (only 7 seconds)
- the use of the clip made a historical point
- the clip was not utilized purely for its entertainment value
- the specific clip was one of the few clips that could fulfill the purpose for which Jersey Boys used it
Lesson Two – Overreaching Rights Owners Can Get Smacked Down
While I am a proponent of vigorously enforced copyright laws, I also recognize that some copyright owners can be over-aggressive bullies and bring copyright infringement claims that have no merit. Apparently, the California federal courts think so too. The courts ruled that because SOFA’s copyright infringement claim against the Jersey Boys clip use was objectively unreasonable, SOFA would have to pay the Dodger’s attorneys’ fees and costs (a whopping $155,000). A significant factor in the court’s decision was that SOFA was sophisticated and knowledgeable about copyright infringement, had been involved in similar lawsuits, and should have recognized the Jersey Boys use as a fair use.
Lesson Three – Unauthorized Uses Frequently Come to the Attention of the Rights Owner
SOFA discovered the use of the clip because a SOFA executive just happened to attend a performance of Jersey Boys. A cautionary tale for producers who are counting on their unauthorized use of other people’s material going unnoticed.