SOFA Entertainment v. Dodger Productions

The “fair use” doctrine of 17 U.S.C. § 17 protects the use of a short television clip in an autobiographical production when use of the clip is for historical significance and its use does not usurp the demand for the original clip.

SOFA Entertainment, Inc., as owner to the rights of The Ed Sullivan Show, sued for copyright infringement when Dodger Productions, Inc. and Dodger Theatricals, Ltd. included a “seven-second clip of Ed Sullivan’s introduction of the Four Seasons” in Jersey Boys, its Four Seasons autobiographical production. Dodger asserted a defense of “fair use” under 17 U.S.C § 107. The district court granted Dodger’s motion for summary judgment and awarded attorneys’ fees, both of which SOFA appealed. Section 107 provides four factors: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used; and (4) market effect. As to the first factor, the clip was used as a “biographical anchor” as to make the inclusion a “transformative” use of the clip. The nature of the clip conveyed facts instead of fictional stories, which placed it outside the “core of intended copyright protection” under factor two. Factor three concerns the “quantitative amount and qualitative value of the original” compared to the “defendant’s justification for the use.” The Court disagreed with SOFA’s argument that the clip infringed on Sullivan’s distinctive introduction because Sullivan’s action was simply an identification and SOFA was attempting to protect Sullivan’s charismatic personality, which is not copyrightable. As to factor four, the clip did not impact the market for the original or deprive SOFA of derivative use because the clip was only seven seconds, only appeared once, and was not available for repeat viewings through distribution. The Ninth Circuit upheld the attorneys’ fees, noting that “a fee award encourages a defendant to litigate a meritorious fair use claim against an unreasonable claim of infringement,” which furthers the purpose of the Copyright Act to “encourage the production of original literary, artistic, and musical expression for the good of the public.” AFFIRMED.