Jersey Boys Case: No Copyright Infringement

Ken AshfordCourts/Law, TheatreLeave a Comment

This blog used to do a lot more law stuff — not so much anymore.  But I wanted to point to a case which highlights my interest in copyright law. 

Today, the Ninth Circuit ruled against SOFA Entertainment in its lawsuit against Dodger Productions, the producers of "Jersey Boys".

In Jersey Boys, a 7-second clip of Ed Sullivan (from the old Ed Sullivan Show) introducing The Four Seasons is used.  SOFA Entertainment asserted in court that this was copyright infringement.  Dodger productions, the defendants, asserted that the clip fell within the "fair use" doctrine.

The clip is shown at the end of the first act. Bob Gaudio stands to the side of the stage and addresses the audience:

“Around this time there was a little dust-up called The British Invasion. Britannia’s ruling the air waves, so we start our own American revolution. The battle begins on Sunday night at eight o’clock and the whole world is watching.”

As Gaudio speaks, the rest of the band is seen on a CBS studio stage preparing for their performance on The Ed Sullivan Show. Just after Gaudio finishes his lines, the clip is shown on screen hanging over the center of the stage. Ed Sullivan assumes his “signature pose” and introduces the band to his studio and television audiences:

“Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons . . . .”

As he concludes, Sullivan turns and, with an extended arm and open palm, directs the theater audience’s attention to the stage. The screen goes dark, and the actors perform a rendition of the song “Dawn.” When the song ends, Gaudio resumes his position at the edge of the stage and addresses the audience again:

"We weren’t a social movement like The Beatles. Our fans didn’t put flowers in their hair and try to levitate the Pentagon. Maybe they should have. Our people were the guys who shipped overseas . . . and their sweethearts. They were factory workers, truck drivers. The kids pumping gas, flipping burgers. The pretty girl with circles under her eyes behind the counter at the diner. They were the ones who really got us, and pushed us over the top."

In finding for Dodger, the 9th Circuit considered the four "fair use" factors:

(1) Purpose and Character of the alleged infringing use.

Interestingly, the 9th circuit followed the trend of courts and focussed this factor on whether the use was “transformative",  holding that it was.  The court concluded that the use was incorporated into the musical as a “historical anchor”  pointing to “an important moment in the band’s career".

(2) The Nature of the Copyrighted Work

On this second factor, the Court rejected SOFA’s claim that Sullivan’s “trademark gesticulation and style” were themselves entitled to copyright protection, going on to hold that it was actually “doubtful” that the brief clip is entitled to copyright protection.

(3) The Amount and Substantiality of the Portion Used

Here is where SOFA’s case really falls apart.  In fact, the plaintiff even conceded that the clip used was not quantitatively significant, but instead argued that it included “one of the central and most beloved parts of the Ed Sullivan Show”.  The Court didn’t buy it, holding that the footage didn’t contain any “qualitatively significant expression”.

(4) Impact on the Market for the Original

The court kept it brief, finding that this factor favored a finding of Fair Use because  ”Jersey Boys is not a substitute for the Ed Sullivan Show”, essentially ignoring the argument that SOFA’s business is founded on obtaining fees for licensing content from its extensive library.  (Sofa had presented almost no evidence on this point in its pleadings).

Full opinion here (PDF)