Bada Bing: Jersey Boys Restore Some Common Sense to Copyright Fair Use | The Wrap Culture

"In SOFA Entertainment, the Ninth Circuit seized the opportunity to provide a practical application of the fair use defense in this context. Departing from Ringgold, the Ninth Circuit affirmed not only the dismissal of the plaintiff’s case on fair use grounds but also awarded attorneys’ fees to the defendant.

Addressing the first factor, the court concluded that the use of the clip of Frankie Valli and the Four Seasons on "The Ed Sullivan Show" was transformative. The secondary use did not supplant the clips original entertainment purpose but served a biographical and time-marking purpose. Similarly, the court held that the clip of "The Ed Sullivan Show" in the stage musical was not a substitute for the show itself. Thus, the use of the clip in "Jersey Boys" did not affect the market for licensing "The Ed Sullivan Show."