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!)

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