By Dan Levine
SAN FRANCISCO (Reuters) - Producers of the musical "Jersey
Boys" did not violate copyright by incorporating a seven-second
clip from "The Ed Sullivan Show" without a license, a federal
appeals court ruled.
The 9th U.S. Circuit Court of Appeals on Monday found that
the producers of the musical, Dodger Productions Inc, were
entitled to prevail on a fair use defense because they used the
footage for its biographical significance.
"Jersey Boys" is a historical drama about the 1960s band The
Four Seasons. SOFA Entertainment Inc, which owns the copyright
to a media library including the entire 1948-1971 run of "The Ed
Sullivan Show," filed the lawsuit after its founder attended a
"Jersey Boys" performance and saw the clip.
A three-judge panel of the appeals court upheld the
findings of U.S. District Judge Dolly Gee in Los Angeles, who
had called SOFA's lawsuit "objectively unreasonable" and awarded
Dodger Productions $155,000 in attorney's fees and costs.
Writing for the panel, 9th Circuit Senior Judge Stephen
Trott said that the fee award was appropriate because such
lawsuits can have "a chilling effect on creativity."
Lawsuits of this nature "discourage the fair use of existing
works in the creation of new ones," Trott wrote.
An attorney for SOFA Entertainment could not immediately be
reached for comment on the ruling.
Dodger Productions attorney Walter Sadler, of Leopold
Petrich & Smith in Los Angeles, said he was "obviously
The 9th Circuit's opinion helps define the parameters of
fair use when the underlying work is used in a historical
context, Sadler said.
In "Jersey Boys," an actor portraying each band member
narrates each of the play's four acts.
The television clip from 1966 is shown at the end of the
first act, as band member Bob Gaudio describes how the band was
going up against the popular British groups at the time.
"'The battle begins on Sunday night at eight o'clock and the
whole world is watching,'" Gaudio says in the musical.
Then Ed Sullivan appears on a screen hanging over the stage
and introduces the band to his studio and TV audiences. When the
clip ends, Gaudio resumes his narrative.
"Being selected by Ed Sullivan to perform on his show was
evidence of the band's enduring prominence in American music,"
Trott wrote in the ruling. "By using it as a biographical
anchor, Dodger put the clip to its own transformative ends."
The case is SOFA Entertainment Inc v. Dodger Productions Inc
and Dodgers Theatricals Ltd, 9th U.S. Circuit Court of Appeals,
For SOFA: Jaime Marquart, Baker Marquart in Los Angeles.
For Dodger: Walter Sadler, Leopold Petrich & Smith in Los
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