The producers of the popular musical “Jersey Boys” have successfully defended a copyright infringement lawsuit over the use of footage from “The Ed Sullivan Show.” The Ninth Circuit Court of Appeals agreed that the short clip constituted fair use.
The case, SOFA Entertainment Inc. v. Dodger Productions Inc. and Dodgers Theatricals Ltd., involved a seven-second clip of Ed Sullivan’s introduction of the Four Seasons on “The Ed Sullivan Show.” The band is the focus of the “Jersey Boys” musical. Each band member narrates one of the play’s four acts, and each act offers that band member’s take on a period in the Four Seasons’ history.
SOFA Entertainment Inc., which owns the copyright to all episodes of “The Ed Sullivan Show,” filed the infringement suit alleging that the producers used the clip without permission or a valid license. Meanwhile, the producers of “Jersey Boys,” Dodger Productions, Inc., argued that because the clip was used to mark a historical point in the band’s career, it was protected under the fair use doctrine.
The Ninth Circuit agreed. “Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music,” the court noted. “By using it as a biographical anchor, Dodger put the clip to its own transformative ends.”
After balancing the remaining factors required under fair use analysis, the court concluded, “Dodger’s use of the clip did not harm SOFA’s copyright in The Ed Sullivan Show, and society’s enjoyment of Dodger’s creative endeavor is enhanced with its inclusion.” The court even went on to add, “This case is a good example of why the ‘fair use’ doctrine exists.”
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