JERSEY BOYS’ USE OF THE ED SULLIVAN CLIP QUALIFIES AS A FAIR USE

Plaintiff SOFA Entertainment, owner of the licensing rights to the “Ed Sullivan Show”, was attending the Broadway show Jersey Boys when he noticed that a seven second clip from the “Ed Sullivan Show” appeared in the show. The Jersey Boys show is loosely based on the Four Seasons band and the lives of its members. The seven second clip featured the Four Seasons band getting ready for their “Ed Sullivan Show” performance. After the show ended, plaintiff filed a copyright infringement suit against the Jersey Boys producers.

The Ninth Circuit disagreed with plaintiff and found that the clip in the Jersey Boys show constituted a fair use. First, the purpose and character of the use was “transformative” because it added something new to the clip’s original meaning or message. The clip was not shown for entertainment value. Instead, it was shown to provide a reference point in rock and roll history.