Ed Sullivan vs. the Jersey Boys

A long time ago, about 50 years ago, in the 1960’s, there was a band from New Jersey called the Four Lovers. When they failed at a 1960 audition to be the lounge singers at a New Jersey bowling alley called the Four Seasons, they re-named the band after the bowling alley, just so they could get something out of audition. In just a few years, they were the United States’ second-most popular band after the Beach Boys. They were the sort of band my mother (who grew up pretty close by in Philadelphia) loved: handsome, blue-collar, immigrant (the members were all Italian-American), smooth, well-groomed, a rock n’ roll band that was more pop than rock.

Even if you’re in your 20’s, you have heard of their songs, and you recognize Frankie Valli’s astounding falsetto, in songs like “Big Girls Don’t Cry,” “My Eyes Adored You” and “Rag Doll.” Ironically, the Four Seasons came from tough backgrounds, but worked hard to appear clean-cut, whereas later rock bands affected the kind of street-tough backgrounds the Four Seasons tried to hide.

Even after the Beatles arrived, the Four Seasons remained immensely popular. Indeed, they were one of the few American bands to consistently chart during the British Invasion. Thus it was, during the height of Beatlemania, on January 2, 1966, the Four Seasons appeared on the Ed Sullivan Show, which was perhaps the premier venue for popular music. It was, after all, an appearance one the Ed Sullivan Show that propelled the Beatles to fame in the United States. For the show, the Four Seasons perform “Dawn,” a song that would have been no. 1 if it weren’t for three intervening Beatles songs.

In 2005, one of the original Four Seasons, Bob Gaudio, and long time Four-Seasons producer, Bob Crewe, decided to tell the story of the Four Seasons, much of which was deliberately hidden during  the heyday of their clean-cut popularity. Obviously, it would be a “jukebox musical,” but with a narrative twist: the musical would be divided into four acts (“spring,” “summer” etc.), and each act would be told from the point of view of a different member. The musical, called Jersey Boys, was (and remains) pretty much a huge smash.

At the end of the first “season,” the actor playing Gaudio himself announces: “Around this time there was a little dust-up called The British Invasion. Britannia’s ruling the air waves, so we start our own American revolution. The battle begins on Sunday night at eight o’clock and the whole world is watching.” Gaudio and the other Four Seasons (on stage) begin to act as though they were preparing for an appearance on the Ed Sullivan Show. Then, on a giant screen above the stage, a seven-second clip from the January 2, 1966, Ed Sullivan Show is played: the part where Ed Sullivan adopts the “Ed Sullivan pose*,” then proclaims: “Now ladies and gentlemen, here for all of the youngsters in the country, the Four Seasons!” The screen goes dark, and the actors then perform (live on the stage) “Dawn.”

* I love Ed Sullivan. Classic so-square-he’s-hip guy.

After the song ends, Gaudio resumes talking to the audience:

We weren’t a social movement like The Beatles. Our fans didn’t put flowers in their hair and try to levitate the Pentagon. Maybe they should have. Our people were the guys who shipped overseas . . . and their sweethearts. They were factory workers, truck drivers. The kids pumping gas, flipping burgers. The pretty girl with circles under her eyes behind the counter at the diner. They were the ones who really got us, and pushed us over the top.

One day, Andrew Solt attended a performance of Jersey Boys. One imagines that he enjoyed every bit, except the seven-second clip. Why? Because he ran the company that owned the copyright in the Ed Sullivan Show, SOFA Entertainment. This, to his mind, was a clear case of infringement, and SOFA duly sued the companies that produced Jersey Boys.

The defendants could hardly pretend they hadn’t used SOFA’s copyright material, but they felt they had a strong case for fair use and defended themselves on that basis.

Were the defendants right? Review the contours of fair use, then click here to see how the Ninth Circuit* recently decided the case.

* Speaking of the contours of fair use, the Ninth Circuit, after complaining about the uselessness of the four statutory factors, incorporates a famous quote from the seminal fair-use opinion, Justice Story’s opinion in Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass 1841) (and from which the four factors are originally derived):

Congress’s guidance, however, has not always been helpful. Many fair use cases still manage to approach “the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”

(Internal quotation marks omitted.)