A three-judge panel of the United States Court of Appeals for the Ninth Circuit in Central California filed on March 11 a ruling that the producers of Jersey Boys were entitled to use a seven-second clip from "The Ed Sullivan Show" as a matter of fair use.
Dodger Productions was sued by SOFA Entertainment, which owns the right to the long-running TV variety show hosted by Sullivan. A 1966 clip of the host introducing Frankie Valli and the Four Seasons is used in the smash-hit musical.
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."
In light of Dodgers' success at the initial summary judgment, the district court granted Dodgers' request for $155,000 in Attorneys' fees and costs," to be paid by SOFA, which had appeared the earlier judgment.