Appeals Court: 'Ed Sullivan' Clip in 'Jersey Boys' is Fair Use

On Monday, the Ninth Circuit Court of Appeals weighed in on an issue that always causes trouble -- when it is permissible to use a short clip of copyrighted material.

The appellate circuit affirmed the dismissal of a lawsuit brought by Sofa Entertainment, which owns copyright in a library of film, television and other media. Sofa alleged that a seven-second clip of The Ed Sullivan Show that was used in the blockbuster musical production of Jersey Boys was a copyright infringement.

The producers of Jersey Boys have prevailed.

"This case is a good example of why the 'fair use' doctrine exists," says the Ninth Circuit.

Dodger Productions, the defendant, originally succeeded in knocking out the lawsuit at a lower trial court. Not only was Dodger victorious in having its use of The Ed Sullivan Show deemed to be a fair use, but the defendant was awarded $155,000 in attorneys fees so as to deter future lawsuits that might chill the creative endeavors of others.

The Ninth Circuit reviewed. Here's the full ruling.

Fair use, which provides exceptions to copyright authority, is often a legally-grey, fact-dependent analysis. There are four factors including the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion used and the effect of the use upon the potential market for the copyrighted work.

Here, in Jersey Boys, a historical dramatization of the musical group The Four Seasons, the actor who plays Bob Gaudio addresses the audience about how the band was coming of age during The British Invasion. As he speaks, the audience is shown a clip of The Ed Sullivan Show where the band prepares to perform on a CBS sound stage. In the clip, Sullivan introduces the band, and then the actors take the cue to perform live.

The appeals court says that this is unquestionably "transformative."

On the first factor -- the purpose and character of use -- appellate judge Stephen Trott writes, "Being selected by Ed Sullivan to perform on his show was evidence of the band's enduring prominence in American music. By using it as a biographical anchor, Dodger put the clip to its own transformative ends."

On the second factor -- the nature of the copyrighted work -- the appeals court determines that the "clip conveys mainly factual information -- who was about to perform."

The third factor always causes a lot of confusion. In this instance, only seven seconds was used. There's no hard and fast rule about what kind of brevity puts a user of copyrighted material in the clear, but the appeals court says that what was used in Jersey Boys was "hardly qualitatively significant," adding a point about what Sofa is likely most concerned about here. "It is Sullivan's charismatic personality that Sofa seeks to protect. Charisma, however, is not copyrightable."

Finally, the appeals court decides that the fourth "market effect" factor weighs against Sofa too because "Jersey Boys is not a substitute for The Ed Sullivan Show" and wouldn't threaten Sofa's licensing of the legendary variety series.

The Ninth Circuit upholds the dismissal as well as the attorney fees award, saying that the plaintiff "should have known from the outset that its chances of success in this case were slip to none. Moreover, we agree with the district court that 'lawsuits of this nature... have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones."

E-mail:; Twitter: @eriqgardner