A short clip of Ed Sullivan's TV show, used in "Jersey Boys" the smash hit musical about the Four Seasons, has been held to be "the very definition of fair use" by a US court in what some will feel is a very liberal interpretation of the doctrine. The 9th Circuit Appeals Court has ruled that a 7-second video which Ed Sullivan's introduction of Frankie Valli & the Four Seasons on the night of January 2nd, 1966, in an episode of his eponymous variety TV show, was not an infringement of copyright.
Dodger Productions and Dodger Theatricals used the clip in the "Jersey Boys" to show how the US band thrived in a pop music scene dominated by the "British Invasion". SOFA Entertainment, which owns the rights to "The Ed Sullivan Show" thought otherwise and sued Dodger for copyright infringement - after the company's founder, Andrew Solt, attended a performance in Los Angeles. At first instance District Judge Dolly Gee granted Dodger summary judgment based on the doctrine of fair use, and awarded $155,000 in attorneys' fees.
The federal appeals court has now unanimously affirmed the decision after hearing oral arguments last month. It found that the clip had been properly transformed into a "biographical anchor" and to "mark an important moment in the band's career" according to Judge Stephen Trott for the three-judge panel: "At that point in rock and 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."
It is Sullivan's charismatic personality that SOFA seeks to protect" Judge Trott wrote - "Charisma, however, is not copyrightable" adding "In the end, we are left with the following conclusion ..... 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."
http://www.entlawdigest.com/2013/03/12/2217.htm and more on the 1709 blog on the gestation of the show here .