SOFA Entertainment v. Dodger Productions: is use of a seven second video clip fair use?

A seven second clip of Ed Sullivan introducing the Four Seasons on The Ed Sullivan Show was used in the musical Jersey Boys about the group.  The defendants argued that it used the clip for its historical significance.  The district court agreed and the plaintiff appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit Court of Appeals first reviewed the definition of fair use.

17 U.S.C. § 107 states, “[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research [] is not an infringement of copyright.” It lists 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.

The court, in analyzing the factors agreed the use of the clip was fair use.  Regarding the first factor, the purpose and character of the use, the court agreed the Jersey Boys use of the clip was “transformative” since it added something new to the existing work.

Dodger references the Four Seasons’ performance on the January 2, 1966 episode of The Ed Sullivan Show to mark an important moment in the band’s career
…
SOFA’s argument that the clip was used for its own entertainment value is not supported by the record. Moreover, because Dodger’s use of the clip is transformative, the fact that Jersey Boys is a commercial production is of little significance. Campbell, 510 U.S. at 579. Therefore, the first fair use factor heavily favors Dodger.

Regarding the second factor, the nature of the copyrighted work, the court found that the contents of the clip itself were factual.  The court held, “the clip conveys mainly factual information – who was about to perform. Therefore, the second factor also favors Dodger.”

Regarding the third factor, the amount of the work used, the court held that the seven second clip was not “qualitatively significant.”  In fact the court noted that, “It is doubtful that the clip on its own qualifies for copyright protection, much less as a qualitatively significant segment of the overall episode.”

Regarding the fourth factor, the market effect, the court found that Jersey Boys has no effect on The Ed Sullivan Show,

The clip is seven seconds long and only appears once in the play. Dodger does not reproduce Jersey Boys on videotape or DVD, which would allow for repeated viewing of the clip. Dodger’s use of the clip advances its own original creation without any reasonable threat to SOFA’s business model. Therefore the fourth factor also favors a finding of fair use.

The court then concluded that the use of the seven second clip was fair use.  The court went on to uphold the award of attorney’s fees to Dodger.