By Jennifer Tytel
Fordham Intellectual Property, Media & Entertainment Law Journal
In 2005 the Broadway musical Jersey Boys opened to massive critical acclaim and was later honored at the 2006 Tony Award’s as the year’s best musical. The play told the rags to riches tale of Frankie Valli and The Four Seasons through music, dancing and use of historical footage. Five years after the first curtain opened, the U.S. District Court for the Central District of California held that the unauthorized use of a clip from a television series during a Broadway show is considered a “fair use” of copyrighted work and an affirmative defense to copyright infringement.
The Plaintiff, Sofa Entertainment Inc., owns the copyright to various television series and films, including The Ed Sullivan Show. Sofa brought a claim against Dodger Productions Inc., producer of Jersey Boys, asserting that their use of a seven second clip of a 1966 episode of The Ed Sullivan Show, which featured a musical performance by the Four Seasons was an infringement. Sofa never licensed the clip or any other portions of The Ed Sullivan Show to be used in Jersey Boys or any other production.
Dodger argued a fair use defense. In examining the claim, the court balanced the four statutory fair use factors set forth in 17 U.S.C. § 107.
Purpose and Character
In analyzing the first factor the Court took into account three considerations: (1) the general purpose or character of the use (2) whether the use is transformative; (3) and whether the use is commercial in nature.
While the District Court found the purpose of the play to be purely dramatic and entertaining, the court also held that the use is transformative because it serves as a historical reference point. In other words, the use transforms the clip from pure entertainment to something more educational in nature. The court then looked at the commercial nature of the use. Although the court considered the work to be commercial in nature, it found no evidence demonstrating the defendant used the clip for marketing or profit purposes. Ultimately, the court did not afford much weight to the commercial character of the clip.
Nature of Copyrighted Work
While it was noted that, in this case, a thin line exists between whether the clip was creative or newsworthy, the court held that since the original works had been published, less protection should be afforded. Therefore, the third factor weighed slightly in the defendant’s favor.
Amount and Substantiality of the Portion Used
The court held that the clip is not a substantial amount of the original copyrighted work and therefore favored a finding of fair use. The substantiality of the clip must be compared to the original work as a whole. While Sofa argued that the clip represents the whole creative effort of the show, the court disagreed. Instead the court held that at most the clip is a transition into the actual meat of the show.
Further, the court reasoned that the seven second clip is merely a single historic reference point embedded in a two hour play. Therefore, the Court held that this factor weighed in favor of fair use.
Effect on the Market
Finally, the court considered whether the unauthorized clip usurped a share of the market from the original work. While the copied clip was certainly commercial and had entertainment value, the court reasoned that there is little evidence that the Dodger’s use of the clip would adversely affect Sofa’s market. Additionally, the court held that the transformative nature of the clip does not lend the defendant to profit drastically from the plaintiff’s market, nor does Jersey Boys marketability rely specifically on the clip. Therefore, the court held that this factor weighed in favor of fair use.
The court balanced the four factors of the fair use doctrine and found that while the first factor weighed for both Sofa and Dodger, the three remaining factors weighed for Dodger. Therefore, the U.S. District Court for the Central District of California ultimately held that Dodger was authorized to use the clip under the fair use doctrine and Jersey Boys continued to dominate Old Broadway.
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