The producers of Jersey Boys were sued for showing a seven-second clip of Ed Sullivan’s introduction of the Four Seasons on The Ed Sullivan Show.  The plaintiff owed the copyright of the entire run of The Ed Sullivan Show.   (SOFA Entertainment, Inc. v. Dodger Productions, Inc. – filed March 11, 2013)

The 9th Circuit held in favor of the producers, on the grounds of “fair use.”   As the Court discussed, the Copyright Act exists “‘to stimulate artistic creativity for the general public good.’”  It does so by granting authors a “special reward” in the form of a limited monopoly over their works.  However, because an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite, to avoid that perverse result, Congress codified the “fair use” doctrine.

The defendant producers used the clip in Jersey Boys, their musical about the Four Seasons, to mark a historical point in the band’s career. The panel held that this was a fair use because by using the clip for its historical significance.

The Court also affirmed the award of attorney’s fees to the Defendants.

The Court’s discussion provides an good example of how to use such existing copyrighted material.  (“Congress’s guidance, however, has not always been helpful. Many fair use cases still manage to approach “‘the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.’”  … Fortunately, this is not one of those cases. As our application of the statutory factors will confirm, Dodger’s use of the clip is undoubtably “fair.””)

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