Using clips from Ed Sullivan in Jersey Boys found to be fair use; judges award costs to deter future "chilling" copyright lawsuits

A Ninth Circuit Appeals Court has ruled that the producers of the musical "Jersey Boys" did not violate copyright law by using a clip from the Ed Sullivan Show in their production. They'd been sued by SOFA Entertainment, who holds the Sullivan Show rights. The judges awarded costs to the Jersey Boys production company, so SOFA will have to pay $155,000 in attorneys' fees and costs -- an award that the judges specifically stated was intended to "deter future lawsuits that might chill the creative endeavors of others."

Appellant SOFA Entertainment, Inc. claimed Dodger infringed its copyright in the clip and could not justify its unlicensed use of the clip as "fair use."
"SOFA is mistaken," said Circuit Judge Stephen S. Trott. "The defendants used the clip in Jersey Boys, their musical about the Four Seasons, to mark a historical point in the band's career. The panel held that this was a fair use because by using the clip for its historical significance, the defendants had imbued it with new meaning and had done so without usurping whatever demand there was for the original clip."
The district court viewed SOFA's infringement claim as "objectively unreasonable and determined that awarding fees would deter future lawsuits that might chill the creative endeavors of others."

Court Says Jersey Boys Producers Were Free to Use Copyrighted "Ed Sullivan" Clip in Show [Kenneth Jones/Playbill]

(Thanks, Dick!)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

MORE: Copyfight • fair use • law • musicals

More at Boing Boing

Eurovision 2013: An American in London

The technology that links taxonomy and Star Trek

jandrese

Holy crap, how did common sense get into a courtroom? Certainly SOFA is going to appeal and win right? The courts have shown time and time again that they don’t want people to be reasonable about Copyright, this must be an aberration, right? I shouldn’t get my hopes up. A ruling this sensible has no chance in the higher courts.
- noah django
  
  it’s like an episode of the twilight zone. eerie.
- Promethean Sky
  
  The ninth circuit has a shockingly good track record when it comes to matters of common sense. Hell, they’re practically respectable. Too bad they get overturned so often.
- Steve White
  
  You said exactly what I was thinking.
  
  “The panel held that this was a fair use because by using the clip for its historical significance, the defendants had imbued it with new meaning and had done so without usurping whatever demand there was for the original clip.” This is a bit of clarity that should go a long way in defining fair use. I hope it’s not knocked down.
http://blog.glennf.com/ Glenn Fleishman

Does this mean that the “clearance” industry just took a big hit?
TooGoodToCheck

Between this and Prenda, I’m starting to feel kind of. . . what the heck is it called now? when you don’t feel like every single thing is going to hell in a handbasket?
- s2redux
  
  Asleep.
- Gerald Mander
  
  Deluded?
- http://twitter.com/pickledbeatnik pickledbeatnik
  
  Astounded? Agog? Glowing? Effervescent? Slightly gassy? I guess that last one’s two words. Anyway, it’s a pretty sad world when common sense, something that should be, well, common, becomes something extraordinary. But, it’s not so sad a world where it remains to imbibe masses with hope. Good on Judge Trott. I sure am proud of him!
peregrinus

Yay! Fuckers.
Gerald Mander

Despite my snark above, I’m hoping that this & some other recent courtroom events (porn copyright trollers) are indicative of a sea change in judicial attitudes toward copyright & fair use. Fingers crossed.
http://doran.pacifist.net/ Doran

This is good. Particularly because the court is saying this fair-use adds value to the product without “usurping” demand for the original.
arbitraryaardvark

a quibble here: costs is not the same as costs and fees. attorney’s fees are probably 90% of that. costs is stuff like photocopy expenses, depositions etc.
http://www.facebook.com/sisyphus.idaho Sisyphus Idaho

It probably helped that Judge Trott was one of the original Highwayman.

http://en.wikipedia.org/wiki/The_Highwaymen_(folk_band)

I once clerked for the ninth circuit, and Judge Trott often takes his guitar with him to San Francisco to hear cases (His chambers are in Boise). Often he’d pull it out while waiting for a plane and start playing, with commuters throwing the occasional dollar in his guitar case.
http://billmcgonigle.com bill_mcgonigle

But we wouldnt want to think too hard, we have a blog to write.

Oh, there are people who think hard about this and dedicate entire blogs to it.