In fact, the 9th Circuit Court of Appeals on Monday ruled that the use of the 1966 clip was so obviously “fair use” of the material that the owner of the rights to “The Ed Sullivan Show” has to pay the $155,000 in legal costs of Dodger Prods., the producer of “Jersey Boys.” The judges said that SOFA Entertainment, the owner of the Sullivan shows, “should have known from the outset that its chances of success in this case were slim to none” given that the company had been involved in previous litigation involving the use of clips of Elvis Presley.
The musical features a clip of Sullivan on a screen hanging over the center of the stage, with the legendary variety host introducing the Four Seasons, directing the audience’s attention to the actors performing in person a rendition of the song “Dawn.”
After seeing the musical, SOFA’s founder, Andrew Solt, sued the producers of “Jersey Boys,” but U.S. District Judge Dolly Gee granted summary judgment to Dodger before the appeal.
Although the copyright act does not define the dividing line between “fair use” and copyright infringement, it does spell out four factors for courts to consider, including the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the copyrighted work and the effect of the use on the market value of the protected project. The appellate judges ruled in favor of the “Jersey Boys” producer on all points.
“Certainly movement and intonation are elements in an original performance, but SOFA’s argument is not limited to Sullivan’s performance in the clip,” Judge Stephen Trott wrote in the opinion. “It is Sullivan’s charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.”