Appeals Court Wants More Copyright Defendants To Stand Up For Their Fair Use Rights

We've seen a number of questionable fair use rulings lately, so it's always nice to see a good one. The musical play Jersey Boys was apparently sued (or, more specifically, its producers, Dodger Productiongs, were) a while back by SOFA Entertainment, who holds the copyrights on The Ed Sullivan Show. Someone from SOFA went to see Jersey Boys and flipped out when they saw a 7-second clip of the Ed Sullivan Show being used at one point. The clip includes Ed Sullivan introducing the band on the show, and, in the play, the band then plays while a narrator explains how this was a key moment in the band's history. A district court ruled that this was obviously fair use and slapped attorneys fees on SOFA entertainment, and now a 9th Circuit appeals court has upheld the ruling with a short and sweet ruling that reminds people how important fair use is -- and mildly berates the lawyers for SOFA for bothering to bring such a case in the first place. First, the court notes that copyright law can be abused, and how fair use is an important way to prevent that abuse:

[Copyright grants] authors a a "special reward" in the form of a limited monopoly over their works. However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite.

It's nice, of course, to see the court acknowledge both that copyright is, in fact, a monopoly, and that overzealous use of it can "stamp out the very creativity that the Act seeks to ignite." Too many refuse to even admit this rather important point. It then goes through the typical four factor analysis for fair use, and comes to the easy conclusion that this is fair use, as all four factors come out in favor. At one point, it even notes that the clip itself could even have copyright protection separate from the rest of the program.

Sullivan simply identifies the group that is about to perform and the section of his audience to whom the Four Seasons would appeal. It is doubtful that the clip on its own qualifies for copyright protection, much less as a qualitatively significant segment of the overall episode.

The court correctly finds it ridiculous that SOFA argued that Sullivan's "trademark gesticulation and style" are covered by copyright:

SOFA contorts the Supreme Court's use of the phrase "distinctive expression" in Harper & Row, Publishers, Inc. v. Nation Enterprises, to give the false impression that Mr. Sullivan's "trademark gesticulation and style" is copyrightable. Copyright only attaches to an original work fixed in a tangible medium of expression, never in the underlying ideas or facts. The Court used the words "distinctive expression" to explain that defendant had copied sections of President Ford's memoirs that contained Mr. Ford's writing, as opposed to the events he was discussing. Certainly movement and intonation are elements in an original performance, but SOFA's argument is not limited to Sullivan's performance in the clip. It is Sullivan's charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.

The court also mocks the idea that the play somehow is a substitution for the clip:

Jersey Boys is not a substitute for The Ed Sullivan Show. The clip is seven seconds long and only appears once in the play. Dodger does not reproduce Jersey Boys on videotape or DVD, which would allow for repeated viewing of the clip. Dodger's use of the clip advances its own original creation without any reasonable threat to SOFA's business model.

In the end, a total, complete, clear cut fair use case.

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.

In fact, it's such a good example, that the court supports making SOFA pay attorneys fees, in part because the lawyers should have immediately recognized that this was fair use (due to their involvement in previous copyright lawsuits) -- and thus, the case seemed only designed to cause trouble for the production:

> Moreover, we agree with the district court that "lawsuits of this nature . . . have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones." The fair use doctrine is an integral part of copyright law precisely because it gives authors "breathing space within the confines of copyright" to build upon their predecessors' works.

Furthermore, the court argues that by awarding attorneys fees, this will hopefully help others with fair use claims to stand up for them in court: