Fair Use!

The Ninth Circuit regarded this as a very easy case (read it for yourself). Immediately after the bit about how fair use cases often drop us into the “metaphysics of law,” the Ninth Circuit adds: “Fortunately, this is not one of those cases. … [Defendants’] use of the clip is undoubtedly ‘fair’.”

  • Factor 1: Nature of the Use: The court found the use of the seven-second clip to be “transformative” because it was put to biographic ends—i.e., to show a pivotal event in the lives of the Four Seasons. The use was clearly to support a commercial enterprise—Jersey Boys was a money-making venture, not a scholarly biography—but the court held that “transformative” uses are such powerful indicators of fair use that they overwhelm any weight the commercial use provide.
  • Factor 2: Nature of the Copyright Work: While the court had no doubt that the Ed Sullivan Show as a whole was a highly creative endeavor, but the clip is very careful not to include much of the show’s creativity. All you see is Ed Sullivan introducing the band. This the court regarded as essentially factual information.
  • Factor 3: Amount Used: Seven seconds just isn’t very much. As awesome as the “Ed Sullivan pose” is, it’s not the main reason people watched the show. They watched it for the acts.*
  • Factor 4: Market Effect: Nobody buying tickets to Jersey Boys to see seven seconds of the Ed Sullivan show, no matter how awesome the “Ed Sullivan pose” is.

 * SOFA tried to argue that the “Ed Sullivan pose” was so distinctive that even seven seconds of it should defeat a defense of fair use. The court rejected this argument because the pose was not, by itself, copyrightable. What SOFA is trying to protect in this argument is Ed Sullivan’s pure awesome (what the court more soberly called his “charisma”), but pure awesome (“charisma”) isn’t copyrightable (though it might, in different circumstances, support a trademark).

If Ignorance of Law Is No Excuse, What Do You Call Willful Amnesia?

OK, that’s pretty straightforward for fair use. What was surprising (and newsworthy about the case) was that the Ninth Circuit held that the case for fair use was so straightforward that SOFA should be made to pay the defendants’ attorney’s fees.

This might seem harsh, but then, you have consider an earlier case in which a defendant sought to use video clips in a video biography—in that case, of Elvis Presley. In that case, the Ninth Circuit, over a strong dissent, upheld a preliminary injunction preventing the biography from airing. The court was clearly reluctant in doing so, but at the preliminary-injunction stage, the standard is a lot lower: the preliminary injunction will be upheld unless the trial judge really screwed up. Two of the appellate judges didn’t feel strongly enough about the case for fair use to say the trial judge screwed up (though the dissenting judge had no such problem).

The key reason the preliminary injunction issued in the Elvis case was that the video biography didn’t seem to be so much a biography but to show Elvis performing, often for long stretches of time. Arguably, the biographical nature of the video was just a pretext for showing lots of really interesting copyright works. But the Ninth Circuit was clear, however, that short uses of video clips for the real purpose of showing important moments in someone’s life:

Here, [the defendant’s] use of many of the television clips is transformative because they are cited as historical reference points in the life of a remarkable entertainer. … But many of the film clips seem to be used in excess of this benign purpose, and instead are simply rebroadcast for entertainment purposes that Plaintiffs rightfully own.

Getting back to the Jersey Boys case, the Ninth Circuit felt that, under this precedent, it was a no-brainer that a seven-second clip showing a “historical reference point in the life of … remarkable entertainer[s]” was a fair use. The case was in the books, and the plaintiff had no excuse to be ignorant of it.

Oh, and one more thing about the Elvis case. One of the TV shows that the defendant took Elvis clips from? The Ed Sullivan Show. And one of the plaintiffs, therefore? SOFA.

So, yeah, SOFA should have known better.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.