Case Brief

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Jersey Boys is a Broadway musical produced by Dodger Productions, which portrays the life and musical careers of the singing group The Four Seasons. During the 1960s, The Four Seasons were the Americans answer to the British invasion, singing such hits as “Can’t Take My Eyes Off You”, “My Eyes Adored You”, and their biggest hit, “Sherry.” The group consisted of four members, each one representing a different season. Tommy Devito was spring while Nick Massi was fall; Frankie Vallie was winter, and Bob Gaudio, summer.1 During the show, actors portray each one of the members of the Four Seasons, with each actor narrating one of the play’s four acts. The show also contains videos of live footage of the Four Seasons. Some videos show them interacting with fans, or conducting interviews while other videos show them performing in front of a live studio audiences.2 One such video includes a seven-second clip from the popular CBS television show, the Ed Sullivan Show. The Ed Sullivan Show aired from 1948 to 1971, entertaining families every Sunday evening at 8 p.m. Families would gather around their television sets to see performances by Elvis Presley, Bob Dylan, the Beatles, and yes, even the Four Seasons.3 This experience of the Four Seasons 1962 performance on the Ed Sullivan Show is depicted by a seven-second clip with Ed Sullivan saying, “Now ladies and gentlemen, here, for all of you youngsters in the country, the Four Seasons…” With that, the screen goes blank; the lights go up, and the actors begin playing the song, “Dawn”. This scene is a pivotal part in the play, displaying that the band has finally “made it” in the eyes of America, but what Dodger did not know was that the scene was soon going to be important for another reason.4 While attending a production of Jersey Boys, a man named Andrew Solt did not find the Ed Sullivan scene to be too entertaining. Andrew Solt, founder of the television production company named SOFA Entertainment, found this scene to be a reason to sue. This is because SOFA Entertainment owns the rights to the Ed Sullivan Show, and Dodger used the clip without seeking permission from SOFA first.5 This led Mr. Solt to sue Dodger Productions over copyright infringement. Dodger responded by declaring that its use of the clip represented “fair use” under 17 U.S.C. § 107. Both parties moved for summary judgment, and the trial went to the district court.

During the trial, the Plaintiff in the case, SOFA Entertainment, argued that the defendant, Dodger Productions, used a clip from the Ed Sullivan Show, which SOFA owns, without permission or license. SOFA’s main concerned was that the value from their investment was being damaged if their copyrighted material were being used for free. Since SOFA is in the business of selling their licensed clip to radio, television and other media; it makes sense that there would be concerned with Dodger’s unlicensed use of the clip.6

Dodger, on the other hand, moved for summary judgment, citing that they had used the clip based on “fair use”. As stated in Stewart v Abend, a Supreme Court decision dealing with copyright ownership, the Court agreed that a “fair use of a copyrighted work is not an infringement of copyright.”7 On July 9, 2010, the district court ruled in favor of the Defendant’s motion for summary judgment, which included the Plaintiff pay the attorney fees of $155,555.000, to the Defendant. The summary judgment was granted, because the court did not see any reason for a trial. They were extremely confident about their decision that the defendant used the clip in fair use, because they employed the fair use doctrine that was codified in the Copyright Act of 1976. The statute states “the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarships, or research, is not an infringement of copyright.” The statute then goes on to explain the four factors that the court used in determining if Dodger’s use of...