PASADENA, Calif. (CN) - Producers of "Jersey Boys" urged the 9th Circuit to approve the musical's use of a seconds-long television clip of Ed Sullivan.
Just before the actors perform a song to close the first act of "Jersey Boys: The Story of Frankie Valli & the Four Seasons," audiences are given a 7-second clip of "The Ed Sullivan Show" in which the late host introduces the musicians for a 1966 episode.
Sofa Entertainment, which owns the library of "The Ed Sullivan Show," sued the show's producers, Dodger Productions and Dodger Theatricals, for copyright infringement in 2008.
A Los Angeles federal judge ultimately granted summary judgment to the producers after finding that the clip constitutes fair use since the footage provides a "historical reference point" for the play, and since the use was transformative.
Urging a three-judge panel to revive Sofa's suit last week, attorney Jaime Marquart said "nothing could compare" to Sullivan's "iconic" introduction, despite the brevity of the clip, and that the play's producers should have paid for it.
"What we are saying is that it has some value," Marquart said.
Senior Judge Stephen Trott seem unconvinced, grilling the Baker Marquart lawyer on the use of a clip as an historical reference point.
"Isn't that precisely how the Ed Sullivan clip was used here?" Trott asked.
Marquart said the producers could have replicated Sullivan's performance using an impersonator, and that the producers "didn't transform it in any way" since they played the clip unedited.
Arguing for Dodger Productions, attorney David Korzenik said the clip constitutes "classical" transformative use, giving a "brief historical reference" and a comment on a cultural moment.
"The event we're depicting is one of great significance in cultural history - it's about this time of the British invasion," he said, referring to the time period when U.K. acts took over American airwaves.
"It's the Gettysburg," Trott said, seemingly taking a shine to the attorney's reasoning. "The revolution. You have your antagonists and your protagonists, and this is the pivot point."
Korzenik agreed, saying "The Ed Sullivan Show" clip captured a "crucial moment in cultural history" when American acts like Four Seasons showed they would not give up the stage without a fight.
The entertainment value of "Jersey Boys" does not rob the show of protection under fair use, Korzenik added.
Judge Diarmuid O'Scannlain and Judge Richard Clifton also sat on the panel with Trott.
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