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Display in Musical of Clip from 'Ed Sullivan' Show Was Fair Use

By Judith L. Grubner

In SOFA Entertainment, Inc. v. Dodger Productions, Inc., __ F.3d __ (9th Cir. 2013), the U.S. Court of Appeals for the Ninth Circuit considered whether it was “fair use” under the Copyright Act for the award-winning musical “Jersey Boys” to use a seven-second clip of Ed Sullivan's introduction of the Four Seasons rock band on “ The Ed Sullivan Show” that aired in 1966. The clip is used in the musical to illustrate an important moment in the Four Seasons' history. In a projection on a screen hanging over the center of the stage, Ed Sullivan is seen in his “ signature pose,” saying “Now ladies and gentlemen, here, for all of the youngsters in the country, the Four Seasons. ' “' He turns, extends his hand and open palm, and directs the attention of the audience to the stage. The screen goes dark and the actors in the musical perform the song “Dawn.”

The play, a historical dramatization, is divided into four acts, each narrated by an actor playing one of the band members ' Tommy DeVito, Bob Gaudio, Nick Massi, and Frankie Valli. The clip, which appears at the end of the first act, is introduced by the Bob Gaudio character, who places it in context as a “battle” of an American rock band against the “British Invasion” of bands, originally kicked off by the Beatles' prior performance on “The Ed Sullivan Show.” After the song ends, the Gaudio character speaks again, explaining that the Four Seasons was not a social movement like the Beatles, but appealed to military personnel and blue collar workers.

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