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April 2013

Seven-Second Audio-Visual Clip Used in Musical Theater Affirmed As Copyright Fair Use

The Ninth Circuit Court of Appeals recently affirmed a district court’s decision to grant summary judgment and award attorneys fees in favor of the defendant in a copyright infringement case based on the fair use defense. Sofa Entm’t, Inc. v. Dodger Prods. (Case Nos. No. 10-56535, No. 10-57071) (9th Cir. Mar. 13, 2013).

Plaintiff Sofa Entertainment, Inc. (“Sofa”) owns the copyright to the entire catalogue of The Ed Sullivan Show. Defendants Dodger Productions, Inc. and Dodger Theatricals, Ltd. (collectively “Dodger”) produce the musical Jersey Boys, a historical dramatization about the band The Four Seasons. During the presentation of the musical, a seven-second clip of The Ed Sullivan Show is displayed, where the host Ed Sullivan introduces the band, announcing: “Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons. . . .” The actors in the musical then proceed to play a rendition of The Four Seasons’s song, “Dawn,” live. When Sofa’s founder attended a showing of the musical, he discovered the use of the clip and proceeded to file a lawsuit against Dodger, asserting copyright infringement.

Both parties filed motions for summary judgment, and the district court granted Dodger’s motion. Because the judge found Sofa’s lawsuit to be objectively unreasonable,

Dodger’s motion for attorneys fees was also granted. The Ninth Circuit appellate court agreed with the district court and affirmed the decision.

Copyright Fair Use

To counteract copyright owners from stamping out the very creativity the Copyright Act was meant to inspire, Congress developed the fair use doctrine, codified under 17 U.S.C. § 107. Congress listed four factors to guide courts in their analysis:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

While the Ninth Circuit admitted that these guidelines do not always prove to be helpful, Dodger’s use of the seven-second clip was undoubtedly fair use.

First, as to the purpose and character of the use, the appellate court stated that the relevant inquiry was whether the offending use constituted a “transformative” use. “Transformative works ‘add[] something new’ to an existing work, endowing the first with ‘new expression, meaning, or message,’ rather than ‘merely supersed[ing] the objects of the original creation.’” The court found that Dodger’s use of the seven-second clip was not for the entertainment value of the clip itself, but rather to show how The Four Seasons—and American band—endured despite the so-called “British Invasion,” as demonstrated by the band’s appearance on the famous and widely-watched The Ed Sullivan Show.

Second, as to the nature of the copyrighted work, courts have recognized that some works are “closer to the core of intended copyright protection than others.” For example, while the entire episode of The Ed Sullivan Show would be close to the core of intended copyright protection, the seven-second clip in which Ed Sullivan merely introduced the band was not.

Third, as to the portion used in relation to the whole, Sofa argued that while seven seconds of an entire episode may not be quantitatively significant, it was qualitatively significant because Ed Sullivan’s signature introduction of the performing bands was the “central and most beloved part” of the show. The appellate court rejected this argument, finding that the introduction was merely informational, and that Ed Sullivan’s “trademark gesticulation and style” and his charisma were not proper subjects of copyright protection.

Fourth, as to the effect a defendant’s act would have on the marketplace, the court found none, as Jersey Boys is not a substitute for watching The Ed Sullivan Show and would not threaten Sofa’s business model.

Balancing the above factors, the Ninth Circuit court found that Dodger’s use of the clip clearly constituted fair use.

Attorneys Fees

While the district court’s decision regarding fair use was a mixed question of fact and law that the appellate court reviewed de novo, the district court’s award of attorneys fees to Dodger was reviewed by the appellate court for abuse of discretion.

District courts have the discretion to grant the prevailing party reasonable attorneys fees under 17 U.S.C. § 505, and courts have done so where they have found the claims to be “objectively unreasonable.” The appellate court pointed out that this case was

objectively unreasonable, not only because of the above analyses regarding the fair use factors, but also because Sofa was the plaintiff in a similar prior case that yielded a similar result. Therefore, the appellate court affirmed the district court’s award of attorneys fees to Dodger.

Practical Implications

Copyright holders should evaluate the strength of their claims in light of a fair use

defense, especially since they may end up paying for the defendants’ reasonable attorneys fees if a court could find their claims “objectively unreasonable.” While few cases may be as clear-cut as this one, this case illustrates that a court will take into consideration the disposition of prior cases involving the copyright holder. Copyright infringement defendants, on the other hand, should conduct research to determine whether the copyright holder has been involved in similar cases, as well as the dispositions of those cases.

Intellectual Property

Intellectual Property