(CN) – A short clip of Ed Sullivan used in “Jersey Boys,” a musical about the Four Seasons, is the very definition of fair use, the 9th Circuit ruled Monday.
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The 7-second video shows Sullivan’s introduction of Frankie Valli & the Four Seasons on a Jan. 2, 1966, episode of his eponymous variety show.
Dodger Productions and Dodger Theatricals used the clip in their hit show “Jersey Boys” to show how the band thrived in a pop music scene otherwise dominated by the British Invasion.
SOFA Entertainment, which owns the rights “The Ed Sullivan Show,” sued Dodger for copyright infringement after its founder, Andrew Solt, attended a performance.
In Los Angeles, U.S. District Judge Dolly Gee granted the production companies summary judgment based on fair use, and awarded $155,000 in attorneys’ fees.
The Pasadena-based federal appeals court unanimously affirmed on Monday after hearing oral arguments just last month. It found that the clip had been properly transformed into a “biographical anchor.”
“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,” wrote Judge Stephen Trott for the three-judge panel. “At that point in rock & roll history, many American bands were pushed into obscurity by the weight of the ‘British Invasion,’ which was kicked off by the Beatles’ performance on The Ed Sullivan Show. The Four Seasons, however, thrived. Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music. By using it as a biographical anchor, Dodger put the clip to its own transformative ends.”
SOFA failed to show Dodger used the clip to “capitalize” on Sullivan’s distinctive style of introducing pop acts, which SOFA considers the “central and most beloved” part of the show,” according to the ruling.
“It is Sullivan’s charismatic personality that SOFA seeks to protect,” Trott wrote. “Charisma, however, is not copyrightable.”
“In the end, we are left with the following conclusion,” Trott added. “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. This case is a good example of why the ‘fair use’ doctrine exists.”
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