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Jersey Boys and Fair Use

(via “Using Clips from Ed Sullivan in Jersey Boys was Fair Use” from BoingBoing)

Jersey Boys is a musical about Frankie Valli and the Four Seasons.  Apparently at one point in the show, they use a brief audio clip of Ed Sullivan to contextualize the time period of the play.  Here’s the juicy bit of the story:

Jersey Boys

Jersey Boys

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. (Playbill)

Up to now, copyright claims being adjudicated generally carry no penalty for the copyright holder.  If the defendant is judged to be within fair use, then the use can proceed, but the plaintiff doesn’t usually have to pay any damages.  When the judges here assigned the plaintiffs to pay the defendants’ court costs, they disturbed that equilibrium.  Not only did they rule in favor of Fair Use in a commercial work, they created a disincentive for ungenerous interpretations of Fair Use.

I think this is a big deal because copyright depends generally on lawsuits, and the copyright holders usually have a much bigger club to wield in terms of economic power, and by making court costs a potential penalty for abusive copyright holders, they’ve made a strong statement in support of Fair Use.  Well done, Ninth circuit.

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