Appeals Court Wants More Copyright Defendants To Stand Up For Their Fair Use Rights

from the remembering-fair-use dept

Fri, Mar 22nd 2013 12:18pm — Mike Masnick

We've seen a number of questionable fair use rulings lately, so it's always nice to see a good one. The musical play Jersey Boys was apparently sued (or, more specifically, its producers, Dodger Productiongs, were) a while back by SOFA Entertainment, who holds the copyrights on The Ed Sullivan Show. Someone from SOFA went to see Jersey Boys and flipped out when they saw a 7-second clip of the Ed Sullivan Show being used at one point. The clip includes Ed Sullivan introducing the band on the show, and, in the play, the band then plays while a narrator explains how this was a key moment in the band's history. A district court ruled that this was obviously fair use and slapped attorneys fees on SOFA entertainment, and now a 9th Circuit appeals court has upheld the ruling with a short and sweet ruling that reminds people how important fair use is -- and mildly berates the lawyers for SOFA for bothering to bring such a case in the first place. First, the court notes that copyright law can be abused, and how fair use is an important way to prevent that abuse:

[Copyright grants] authors a a "special reward" in the form of a limited monopoly over their works. However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite.

It's nice, of course, to see the court acknowledge both that copyright is, in fact, a monopoly, and that overzealous use of it can "stamp out the very creativity that the Act seeks to ignite." Too many refuse to even admit this rather important point.

It then goes through the typical four factor analysis for fair use, and comes to the easy conclusion that this is fair use, as all four factors come out in favor. At one point, it even notes that the clip itself could even have copyright protection separate from the rest of the program.

Sullivan simply identifies the group that is about to perform and the section of his audience to whom the Four Seasons would appeal. It is doubtful that the clip on its own qualifies for copyright protection, much less as a qualitatively significant segment of the overall episode.

The court correctly finds it ridiculous that SOFA argued that Sullivan's "trademark gesticulation and style" are covered by copyright:

SOFA contorts the Supreme Court's use of the phrase "distinctive expression" in Harper & Row, Publishers, Inc. v. Nation Enterprises, to give the false impression that Mr. Sullivan's "trademark gesticulation and style" is copyrightable. Copyright only attaches to an original work fixed in a tangible medium of expression, never in the underlying ideas or facts. The Court used the words "distinctive expression" to explain that defendant had copied sections of President Ford's memoirs that contained Mr. Ford's writing, as opposed to the events he was discussing.

Certainly movement and intonation are elements in an original performance, but SOFA's argument is not limited to Sullivan's performance in the clip. It is Sullivan's charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.

The court also mocks the idea that the play somehow is a substitution for the clip:

Jersey Boys is not a substitute for The Ed Sullivan Show. The clip is seven seconds long and only appears once in the play. Dodger does not reproduce Jersey Boys on videotape or DVD, which would allow for repeated viewing of the clip. Dodger's use of the clip advances its own original creation without any reasonable threat to SOFA's business model.

In the end, a total, complete, clear cut fair use case.

Dodger's use of the clip did not harm SOFA's copyright in The Ed Sullivan Show, and society's enjoyment of Dodger's creative endeavor is enhanced with its inclusion. This case is a good example of why the "fair use" doctrine exists.

In fact, it's such a good example, that the court supports making SOFA pay attorneys fees, in part because the lawyers should have immediately recognized that this was fair use (due to their involvement in previous copyright lawsuits) -- and thus, the case seemed only designed to cause trouble for the production:

> 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." The fair use doctrine is an integral part of copyright law precisely because it gives authors "breathing space within the confines of copyright" to build upon their predecessors' works.

Furthermore, the court argues that by awarding attorneys fees, this will hopefully help others with fair use claims to stand up for them in court:

When a fee award encourages a defendant to litigate a meritorious fair use claim against an unreasonable claim of infringement, the policies of the Copyright Act are served. Therefore, we conclude that the district court's award of attorney fees to Dodger was justified.

This is interesting, as we normally see talk about how fees should act as a deterrent against some behavior, but in this case, the court points out that such an award can actually have proactive benefits in encouraging more people to litigate fair use claims.

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Filed Under: copyright, ed sullivan show, fair use, jersey boys
Companies: sofa entertainment

48 Comments

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Ninja (profile), 22 Mar 2013 @ 11:56am

First India then this. Wtf?

Copymorons just took note to lobby for the extinction of fair use in the imminent copyright reform ;)
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out_of_the_blue, 22 Mar 2013 @ 12:27pm

7 seconds and NOT crucial is FINE. That IS "fair use".
Now don't continue to conflate THIS with Meltwater constantly scraping AP's ledes in a for-profit commerical biz!
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Anonymous Coward, 22 Mar 2013 @ 12:30pm

Appeals Court Wants More Copyright Defendants To Stand Up For Their Fair Use Rights

You did it again. Fair use is a privilege, not a right. If it were a right, the rightholder would have a legally enforceable claim against others to prevent them from copying. Fair users have no such claim. As a privilege, it means that a fair user has the legal freedom to copy. It takes away the duty they would otherwise not have to copy. If fair use were a right, then others would have a duty of noninterference with respect to the fair user. No such duty exists because it's not a right.
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Anonymous Coward, 22 Mar 2013 @ 12:31pm

The clip includes Ed Sullivan introducing the band on the show, and, in the play, the band then plays while a narrator explains how this was a key moment in the band's history.

I didn't need to read further than that, of course the Jersey Boys must immediately pay Ed Sullivan half their proceeds, past and future. Without him they would be nobodies!
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cpt kangarooski, 22 Mar 2013 @ 12:44pm

Re:
Fair use is a privilege, not a right. If it were a right, the rightholder would have a legally enforceable claim against others to prevent them from copying. Fair users have no such claim.

They do have a right, you're just misunderstanding it. Fair use is an exception to copyright, and copyright is an exception to free speech. An exception to an exception is like a double negative -- it leaves open the underlying free speech right. Now, the right of free speech as protected by the First Amendment is only enforceable against the government, but it is no less a right for that, especially given that in a fair use case there is no applicable right of the copyright holder to prohibit such speech.
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Anonymous Coward, 22 Mar 2013 @ 12:48pm

Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
Google does exactly that and makes money from advertising too so what.
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RonKaminsky (profile), 22 Mar 2013 @ 12:49pm

CIFURAA to the rescue!
Well, it is in Canada and Israel. So now we just have to wait for the CIFURAA (Canadian-Israel Fair Use Rights Activists Association) to lobby for secret negotiations on an international trade agreement "harmonizing" this with other, less enlightened countries, like the US.

</sarc>
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out_of_the_blue, 22 Mar 2013 @ 1:00pm

Re: Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
@"Google does exactly that and makes money from advertising too so what." -- Not sure exactly what you mean, one-liner unpunctuated AC. But even Google PAYS to use AP's headlines because it's clearly NOT fair use -- and AP threatened to sue.
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Chosen Reject (profile), 22 Mar 2013 @ 1:05pm

Re: Re: Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
Google also hosts whole AP articles. I would think any remuneration has a bit more to do with that then simple lede baiting.
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Chosen Reject (profile), 22 Mar 2013 @ 1:08pm

Re:
Fair use is a restoration of the rights copyright takes away in order to grant the privilege of exclusivity to the copyright holder. Copyrights remove rights from all but the holder, fair use is giving a portion of those rights back. I have the right to copy whatever I want. Your copyright privilege takes that away from me. Fair use gives a portion of it back.
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Anonymous Coward, 22 Mar 2013 @ 1:11pm

Re: Re:
If copyright were merely a privilege, such a privilege holder would have no legally enforceable claim against another who copies.

From Black's:

Right = "A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong."

Privilege = "A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability."

This is why the Constitution speaks of an "exclusive Right" and the Copyright Act speaks of "exclusive rights." Because copyright is a right, it gives the rightholder a legally enforceable claim against others who copy.
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Anonymous Coward, 22 Mar 2013 @ 1:12pm

Wow. It seems like only yesterday the judges of the Ninth Circuit were complete morons who ruled cluelessly on the IsoHunt matter. Sounds to me like they're two for two.
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Anonymous Coward, 22 Mar 2013 @ 1:15pm

Re: Re:
You have it backwards. Copyright takes away (from everyone but the rightholder) a privilege and replaces it with a duty.
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Anonymous Coward, 22 Mar 2013 @ 1:16pm

Re: Re: Re:
I guess that explains why no one copies anything in this day and age . . .
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John Fenderson (profile), 22 Mar 2013 @ 1:18pm

Re:
I agree. Further, it's exactly as much of a "right" as copyright is.
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dennis deems (profile), 22 Mar 2013 @ 1:23pm

Re: Re: Re:
You're the one who has it backwards. Absent governments and constitutions, the concept of copyright wouldn't - couldn't - even exist.
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Chosen Reject (profile), 22 Mar 2013 @ 1:27pm

Re: Re: Re:
Are you seriously arguing that it is a privilege to copy others? You realize that's what humans do right? It's how you learn to talk, it's how you learn to walk, what to eat, how to behave, it's how you learn. That's how humans work. We copy. And now you're going to try to argue that the ability to copy is merely a privilege? What next, you're going to outlaw evolution? Is reproduction now merely a privilege as well?

I can copy you. Everyone can and has the right to do so. Copyright takes away that right. That you have been given the exclusivity in copying/distributing/performing some given work is a privilege granted to you by laws whose entire foundation is as an incentive to create more works that will eventually get to the public domain so that more works are copyable. That you refuse to admit this means we can't even begin the debate on whether or not that incentive is necessary, or how long it should be or the details on any other aspect of copyright law or the incentives for creation.

Get it through your head. Copyright is the privilege. Copying is the right taken away from the public, ostensibly willingly given up for an exchange of more works entering the public domain. The public domain is the default state. Everyone has the right to copy and distribute anything in the public domain. Copyright creates a fenced off area to put things somewhere other than the public domain. The mere act of putting something in that fenced off area is a removal of the public domain, which means it is removing the rights of all in order to grant a privilege to one.
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Beech, 22 Mar 2013 @ 1:31pm

Yay!....but
So, yay for this ruling, but there is one part that really bothers me.

"The clip is seven seconds long and only appears once in the play. Dodger does not reproduce Jersey Boys on videotape or DVD, which would allow for repeated viewing of the clip."

So, are they saying that watching a 7 second clip, which they doubt is copyrightable in the first place, over and over on a DVD is a replacement for the Ed Sullivan Show? Are they implying that if I were in the store considering buying a box set of Ed Sullivan DVDs, and saw a DVD of this play, I would say "Screw the box set, I'll just buy this play that has a 7 second clip of Ed in it and watch it repeatedly"?
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Chosen Reject (profile), 22 Mar 2013 @ 1:32pm

Re: Re: Re:
No copying is the right. Copyright is the privilege to be the exclusive owner of that right. In order to grant that privilege, everyone else's rights must be removed. Copying is the right, copyright is the privilege. Being a copyright holder is the privilege of enforcing the exclusivity to the right of copying. In other words, it's the privilege of enforcing the removal of my rights.

Once you acknowledge that, then we can start to discuss whether that's a good thing. That would be an interesting debate to have. It's one I've been in many a time, and always leads to an interesting discussion. But this harping that copying is the privilege and copyright is the right, is so backwards we'll never get to have that interesting conversation.
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Anonymous Coward, 22 Mar 2013 @ 1:46pm

Re: Re: Re:
This is actually pretty absurd. I would argue that both are rights and none of them are privileges...

We are not talking human right level rights though.

The definition of privilege seems way off, though, since liability is not the only thing a "privilege" would normally protect against.
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Anonymous Coward, 22 Mar 2013 @ 1:52pm

But how many lawyers will take a consignment case that is not as clear as this one was?
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Anonymous Coward, 22 Mar 2013 @ 1:55pm

Re: Re: Re: Re:
Just to enforce the definitional issue and point out the absurdity in that narrow definition:

Oxford dictionary definition:
"a special right, advantage, or immunity granted or available only to a particular person or group"

Merriam Webster definition:
"a right or immunity granted as a peculiar benefit, advantage, or favor"

Wikipedia Etymology:
From Old French privilege, from Latin privilegium ("an ordinance or law against or in favor of an individual")

Way broader than just protection against liability and in the modern dictionaries seen as a "right" in and of itself...
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That One Guy (profile), 22 Mar 2013 @ 2:06pm

Re: Yay!....but
Well of course, that's why movie previews have caused movie sales to completely plummet, because after watching a short clip a few times there's no need to watch the whole thing.
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sheenyglass (profile), 22 Mar 2013 @ 2:11pm

Re: Re: Re:
Fair use is an exception from copyright, meaning it is a kind of copying excluded from the scope of the copyright holder's rights. Therefore, there is no exemption from any obligation.
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jupiterkansas (profile), 22 Mar 2013 @ 2:21pm

Re: Yay!....but
Except you can't buy the play. You have to go see it, every night, to get the full Ed Sullivan experience.

Seriously, I watch a lot of stuff but I've never ever watched the Ed Sullivan show. If it weren't for clips and imitators. I wouldn't know who the dude was. They should be happy the play is promoting Ed Sullivan - it might get people interested in finding out more.

They're trying to get money for using the clip. That's not how you make money. Suing the producers will ultimately will lead to the removal of the clip from the play, meaning not publicity for Ed Sullivan. If anything, they should be placing Ed Sullivan ads in the program and saying thank you.

Maybe Ed Sullivan one made the Beatles famous in America, but it's the Beatles that keep Ed Sullivan famous today.
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Anonymous Coward, 22 Mar 2013 @ 2:46pm

Re: Re: Re:
If copyright were merely a privilege, such a privilege holder would have no legally enforceable claim against another who copies.

I don't recall saying that copyright was a privilege. Perhaps you'd like to present an actual argument instead of a non sequitur?

I do recall saying that copyright holders merely by virtue of having a copyright, do not have a right to prohibit fair use. But that's true; in fact there was a court case about it discussed on this very web page!
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bewb, 22 Mar 2013 @ 3:34pm

Thats what happens when Big Search, Big Hardware and Big Piracy have influence within the courts, how will honest content creators will do a living now?

Courts must put up a Paywall to prevent this from happening again!
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Anonymous Coward, 22 Mar 2013 @ 4:06pm

Re: Re: Re: Re:
And who are you? How am I supposed to know what you said or didn't say when your snowflake is unique and it has not appeared on any post? I can't comment on what you said when I have no point of reference.
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Anonymous Coward, 22 Mar 2013 @ 4:09pm

Re: Re: Re: Re: Re:
I understand that there's lots of different definitions. Mike clearly uses right and privilege to be two distinct things, and he claims that copyright is a privilege while fair use is a right. This is despite the fact that authors are given "exclusive rights" and fair use is defined to be a "limitation" on an author's rights. Of course, Mike doesn't bother to ever define what he means by these terms because he doesn't care about the details. He only cares about the rhetorical device of denying that copyright is a right. I prefer to define terms and to use them accurately when making such distinctions. Mike only cares about anti-copyright FUD. The details are unimportant.
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Anonymous Coward, 22 Mar 2013 @ 4:11pm

Re: Re: Yay!....but
So, back to the original question, what if a Broadway performance of Jersey Boys were videotaped and broadcast, or DVDs were sold? Does this imply that there could be an argument that it wouldn't be fair use?
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Anonymous Coward, 22 Mar 2013 @ 4:12pm

Re: Re: Re: Re:
Fair use is an exception from copyright, meaning it is a kind of copying excluded from the scope of the copyright holder's rights. Therefore, there is no exemption from any obligation.

Copyright is an exclusive property right, which means that it's good against the world and that everyone has a duty to not infringe that right. Fair use is an exception to this right which gives a fair user an exemption from a duty that they otherwise would have. Without the fair use privilege, a person would have a duty not to copy. The privilege takes away that duty.
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Anonymous Coward, 22 Mar 2013 @ 4:13pm

Re: Re: Re: Re:
Of course copyright would not exist without governments. So what? That doesn't mean that copyright is not a right. You don't appear to have any idea what a right is.
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Anonymous Coward, 22 Mar 2013 @ 4:15pm

Re: Re: Re: Re:
I get that you love Mike Masnick and you hate copyright and you can't imagine the possibility that copyright is a right because deep down inside that bothers you. I'm using the terms in a specific, defined sense. What exactly are your definitions of right and privilege? Please explain. Please explain exactly what a right is and what a privilege is, and please explain exactly why copyright is a privilege and fair use is a right.
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cpt kangarooski, 22 Mar 2013 @ 4:55pm

Re: Re: Re: Re: Re:
I apologize, it was me, and I guess I forgot to type in my handle.
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Anonymous Coward, 22 Mar 2013 @ 8:40pm

Re: Re: Re: Re: Re: Re:
it's a privilege
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MrWilson, 22 Mar 2013 @ 9:14pm

Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
OOTB just hates it when fair use is enforced...
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Anonymous Coward, 23 Mar 2013 @ 3:01am

Re: Re: Re: Re: Re:
Copyright is an exclusive property right, which means that it's good against the world

Except that it's a privilege, not a right. Rights do not require a law to enforce them, they just exist without codification. Secondly, it isn't good against the world. It's good in the jurisdictions in which it is recognized.
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Anonymous Coward, 23 Mar 2013 @ 3:03am

Re: Re: Re: Re: Re:
Rights exist without the need for codification. Privileges only exist when codified by law. Copy'right' is a privilege.
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Anonymous Coward, 23 Mar 2013 @ 3:29am

What I want to know is ...
...since Ed Sullivan has been dead for almost 40 years now, how is *any* of this providing Mr. Sullivan with any incentive to create new art?
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Anonymous Coward, 23 Mar 2013 @ 9:17am

Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
Desperate for posting credit to collect blood money from his corporate masters, OooB creates posts that have nothing to do with the subject at hand.
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Anonymous Coward, 23 Mar 2013 @ 9:18am

Re: Re: Re: 7 seconds and NOT crucial is FINE. That IS "fair use".
Be nice if you stayed on-topic, boy.
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special-interesting (profile), 23 Mar 2013 @ 11:10am

This is important.

This is a mountain that defendants should climb. However difficult. Lets see how high the (personal) climb is.

Lets take Prendaa for example (lots of the same to choose from) a porn copyright law initiative targeting a specific individual vulnerable to public exposure. Sure the law firm would deny such but the obvious profiling suspicion stands.

If the defendant just complained about the injustice of downloading this might not go well for them at all despite the fact that it might be a social and cultural injustice. (got to reduce terms of copy-wrong law as laws are supposed to support society not tear it apart) if the defendant's lawyer was tech savvy they might be able to credibly point out the hearsay nature of the evidence. (specifically that anyone can spoof an Internet address) If the defendant however pointed out the racial implications of targeting a vulnerable social group to his/her personal lawyer they might not have a viable defense but a great offense.

Its good the appellate court(s) wants to seed defensive positions with fist person witnesses (testimony). However oppressive deep pocket monopoly sponsored special-interest groups can make life hell for (almost) anyone with a voice.

But. (x10^5)

The court system is (by design) impartial. Cold. Hard and rough. ESPECIALLY for the accuser/plaintiff. Why is this seemingly horrible and terrible law proudly written in the constitution? Because it is important that the accuser must meet the demands of first person based testimony reviewed by a judge and jury.

It is classic in history that if you did not like someone you started rumors about that same individual and as lies and tall tales do it grows into a classic Salem MA. Style witch hunt and burning. No kidding. A dark side of normal human social behavior well documented in history.

For these reasons the DMCA take-down notice and other six strikes like enforcement �policies� and whatever government citizen monitoring programs that make files on everyone need to be abolished. Any other three stooges plan must also be trounced on.

Good law is understandable by the everyday citizen. Good law does does not take 5000 pages to write. Good law is universally applied and not (those dammn 5k pages) written around a specific entity or group. Good law actually tries to fit within Social and Cultural bounds set forth in the Constitution.

essay end �

About the two posts: They represent two very different viewpoints and what better way to try and sort out (a very reason for discussion) fact from opinion? My comment in the other post was to suspect any data gathered by the MPAA. What difference would a monopoly's measurement on sales or even profits be anyway? If I measured a boiling pot of water to be hot why would I be surprised?

reactionary.

�Translation: I wanted to wait until other people pointed out problems with the study so I could just copy their FUD.� And. My opinion. (lol)

All studies should get the full sunlight under the magnifying glass review. MPAA, RPX, other or even sponsored by TechDirt. Its called peer review and every scientist or otherwise must suffer the same.

Google does nobody any good with its recording of search history. NSA (protesters are terrorists these days), search warrants (your wife's lawyer looking for infidelity), advertising nonsense (no comment) and just plain voyeurism are reasons why they should be banned from any machine. Only when they begin to lose revenue for spying will they start to change. This applies to forums, BBS's, blogs, shopping sites and every potential privacy breach. What happened to respect for personal private lives?
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Anonymous Coward, 24 Mar 2013 @ 1:49am

Re: Re: Re: Re:
Reproduction is a privilege for folks like out_of_the_blue. I think it's high time it was revoked as a public service to everyone else.
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Adam Wasserman (profile), 24 Mar 2013 @ 7:22pm

Very unclear on the legal definitions
My dear anonymous friend, you do not seem to understand the legal definitions of either privilege or rights.

Privilege is a special benefit, advantage, or Immunity enjoyed by a person or class of people that is not shared with others. It is an *exemption* from the law, an exception to the normal state of affairs.

It so happens that this describes copyright pretty well. The form of monopoly that is called copyright is a *temporary* privilege, not a natural right. Look up natural rights.

On the other hand a right is (as I and others have repeatedly pointed out) is simply an entitlement to something.

It so happens that citizens of the United States are *entitled* to use any "original work fixed in a tangible medium of expression" at any time without requiring anybody's permission as long as the use of that work meets the four factor analysis for fair use. That is the very definition of a right.

You have it backwards.
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Adam Wasserman (profile), 24 Mar 2013 @ 7:56pm

Hallelujah
I don't know what they put into the water over there, but whatever it is I hope they keep it up.
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jupiterkansas (profile), 25 Mar 2013 @ 7:25am

Re: Re: Re: Yay!....but
Simply videorecording a play is a whole new can of worms of rights and licensing.

For instance, you can perform a song on stage without asking permission thanks to music blanket licensing (provided you're performing in a venue that pays the basic licensing fee), but you can't record yourself playing a song on stage because that requires a special license that requires permission, not to mention Actors Equity forbids recording without making a special contract with each actor. So the fair use of using the Ed Sullivan clip in a video is nothing compared to all the other costs of simply filming a stageplay.
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Niall (profile), 26 Mar 2013 @ 3:16am

Re: Re: Re: Re: Re:
Can we retroactively apply it to his parents as well? Say, for their life+70 years?
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Anonymous Coward, 27 Mar 2013 @ 2:21pm

I'm confused
It is doubtful that the clip on its own qualifies for copyright protection

And yet, if someone had pointed a still camera at Ed during those brief seconds and snapped a photo, that single frame would unambiguously qualify for copyright protection.
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