Dodger Productions, Inc. and Dodger Theatricals, Ltd. (Dodger) produced a stage musical called Jersey Boys. The musical is a historical dramatization about the American 1960s rock ‘n’ roll singing group called the Four Seasons and the lives of its members. The musical contains hit songs of the Four Seasons, including “ Sherry,” “ Big Girls Don’t Cry,” “ Rag Doll,” “ Stay,” “ Working My Way Back to You,” “ Dawn,” and other songs. Each band member narrates one of the play’s four acts and offers his take on the group’s history. The Ed Sullivan Show was a weekly television show from 1948 to 1971 that highlighted many singing groups. The Four Seasons appeared and sang on The Ed Sullivan Show on January 2, 1966. SOFA Entertainment, Inc. ( SOFA) owns copyrights to the entire run of The Ed Sullivan Show, including the appearance of the Four Seasons.
At the end of the first act of Jersey Boys, a ­seven second clip is shown on a screen hanging over the center of the stage of the Four Seasons television appearance on The Ed Sullivan Show. The clip shows Ed Sullivan assuming his signature pose and introducing the band to his studio and television audiences, saying, “Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons.” Ed Sullivan turns, and with an extended arm and open palm, directs the attention of the theater audience to the stage. At this point in the Jersey Boys production, the screen goes dark, and the singers perform a rendition of the Four Seasons song “Dawn.” SOFA sued Dodger for copyright infringement. Dodger asserted the defense of fair use. Was Dodger’s use of the seven second clip from The Ed Sullivan Show in its Jersey Boys musical production fair use of a copyrighted work? SOFA Entertainment, Inc. v. Dodger Productions, Inc., 709 F. 3d 1273, 2013 U. S. App. Lexis 4830 (United States Court of Appeals for the Ninth Circuit, 2013)