The U.S. Ninth Circuit Court of Appeals has affirmed a grant of summary judgment for defendants in a copyright infringement case involving the Four Seasons-inspired musical, Jersey Boys. In defendant Dodger’s production, a seven-second clip from the Ed Sullivan Show, introducing the Four Seasons, is shown on a screen over the stage. Before the clip runs, a group members prefaces it, telling the audience the Boys were competing against the British Invasion with the “whole world” watching. As the screen goes dark, the group in the live musical begins to sing.
The court determined this was a fair use because the clip was shown for “biographical significance,” to illuminate an important point in the group’s career. Thus, the use was transformative. The clip’s brevity also weighed in favor of fair use.
In the opinion, Stephen S. Trott, a senior U.S. circuit judge, rejected the claim that the clip could even be copyrighted because it was not a substantial part of the episode. Further, Sullivan’s “charismatic” style alone could not be copyrighted or trademarked because personality cannot be protected. The court sided with defendants on all the other fair-use markers.
Atop the appellate loss, plaintiff’s attorneys were forced to pay the other side’s fees. Fees are awarded if doing so furthers the purposes of the Copyright Act, i.e., “to stimulate artistic creativity for the general public good.” Trott agreed with the district court, that slapping plaintiffs with attorneys fees would deter future lawsuits that attempt to chill the type of creativity employed by Dodger.