Is 7 Second TV Clip Fair Use or Copyright Infringement?

‘Jersey Boys’ Wins Important Copyright Challenge

The Ninth Circuit Court of Appeals has ruled that the producers of the hit play, Jersey Boys, chronicling the rise to stardom of the musical act, “The Four Seasons,” did not infringe upon the rights of the copyright owner to The Ed Sullivan Show. SOFA Entertainment, Inc. v. Dodger Productions, Inc. and Dodgers Theatricals, Ltd., Case No. 10-56535, D.C. No. 2:08-cv-02616-DMG-PJW (9th Cir. filed March 11, 2013).

Copyright Infringement?

The producers use a 7-second clip from the television episode in which Ed Sullivan, using his signature pose and introductory phrase (“Now ladies and gentlemen, here, for all the youngsters in the country . . . ”), presents the band to his studio and television audiences. At the end of the clip, the projection screen used during the play goes dark and is withdrawn from the stage. The producers did not obtain permission or a license from the copyright owner, believing that their use of the clip constituted “fair use” under the Copyright Act of 1976, 17 U.S.C. § 107 (the “Act”). The copyright owner disagreed and commenced an infringement lawsuit against the producers, alleging that presentation of the clip during the showing of the play without a license to do so could not justifiably be considered “fair use.”

The “Fair Use” Doctrine in Copyright Law

The “fair use” doctrine provides a defense against a claim of copyright infringement when rigid application of the Act would be unfair or would inappropriately stifle creativity. Congress specifically included this common law doctrine in the Act to make clear to the public and to the courts that interpretation of the rights created under the Act should be sufficiently flexible to encourage production and dissemination of works of authorship. Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975) (stating that the Act exists “to stimulate artistic creativity for the general public good”). Generally, a use of another’s copyrighted material will be excused as fair if such use promotes the purposes of encouraging new thought and production and does not undercut others’ economic incentive to create and disseminate works by undermining their marketing opportunities. Congress provided that any use “for purposes such as criticism, comment, news reporting, teaching, scholarship or research” would be fair, to avoid the absurd result occasioned by “an overzealous monopolist” who could use his or her copyright to “stamp out the very creativity that the Act seeks to ignite.” SOFA v. Dodger, page 7. While these examples have been influential among federal court decisions, uses other than those identified by Congress have also been found to be fair, such as when an author pokes fun at a copyright owner’s serious work of art, music or literature.

Federal Court Ruling

In ruling upon the infringement case against the producers of the Jersey Boys, the federal court of appeals found that their reference to The Four Seasons’ performance on The Ed Sullivan Show was only to mark an important moment in the band’s career. The producers did not use the clip to promote or enhance the story of the band – by trading on the goodwill and popularity of Ed Sullivan – but rather as a place marker in their rise to stardom. At the time Ed Sullivan agreed to host the band, the “British Invasion,” occasioned largely by the emergence of another band, The Beatles, was overwhelming American radio air time. Unlike many of its peers, The Four Seasons continued to thrive despite the growing dominance of British pop music on American radio stations. The producers of Jersey Boys used the clip only to demonstrate this limited fact and the band’s place in pop music history. The federal court of appeals ruled that the producers’ use of the clip did not harm the owner’s copyright in The Ed Sullivan Show and that society’s enjoyment of the producers’ creative endeavor was significantly enhanced by its inclusion in the play.

As a matter of fact, Jersey Boys has become a critically acclaimed show and international smash hit. The play has won four Tony Awards and the 2009 Laurence Olivier Award for Best New Musical. Estimates place its gross revenues at roughly $406 Million worldwide.


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