The Fair Use Doctrine

In 2013 SOFA Entertainment sued Dodger Productions for its unlicensed use of a seven second clip of the “Ed Sullivan Show” during the stage musical “Jersey Boys”. Dodger Productions argued fair use to defend themselves in their use of the clip during the show. In the show shortly before the clip is played, one of the characters portraying a member of the Four Seasons’ band explains how important the performance on the “Ed Sullivan Show” was to the band. The band hoped that its performance on the show could help bring the music focus in America back to an American band rather than the British bands that had been hugely popular at the time. Then the controversial clip plays, while the actors warm up to get ready for their performance. (Larson, 2013) The court ruled in favor of Dodger Productions agreeing with its use of the Fair Use Doctrine as a defense. The court determined that it fit under the fair use exception for two major reasons. First, the use of the clip was transformative. This is the case because the way in which the clip is used in the show adds new historical meaning to the clip rather than simply rehashing the entertainment that was gleaned from the clip when it initially aired. Secondly, the court determined that the clip was not the “core” of the copyrighted show. Since the clip does not include the actual performance by the Jersey Boys nor does it include the entire episode then it does not pull from the core of what the material was copyrighted for. (Larson, 2013)
Defining Fair Use At its most basic, fair use is simply any “copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” (Stim, 2013) This can all be done without getting permission from the copyright owner to use their material. This is why fair use is used as a defense in cases of copyright infringement. There are four factors that judges must considered when taking on cases of fair use: “the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.” (Stim, 2013)
The first factor mentioned can also be called the transformative factor. What this factor is asking the judge to examine is whether the material is being used to create something new or if it is just a verbatim copy into another work. There are two important questions to consider: “Has the material you have taken from the original been transformed by adding new expression or meaning?” and “Was value added to the original by creating new information, new aesthetics, new insights, and understandings?” (Stim, 2013) The second factor is about the copyrighted work itself. Fair use is easier to apply if the copyrighted work is factual rather than being a work of fiction. It is also better to pull from published work rather than unpublished work. (Stim, 2013) The third factor is about how much of the work is being used. The less of the copyrighted material that is used, then the more likely fair use will be applicable. (Stim, 2013) Using a very small portion of the work that does not pull from the core of the material is the best practice. The last factor is how your use of the copyrighted material affects the market for the original material. If your use of the copyrighted material hurts is marketability (as an example, if you were to use portions of a book before it has been released, that is going to hurt the ability of the book to make sales). However this cannot be looked at by itself as all the factors tie together and change whether or not fair use is applicable. (Stim, 2013) In the case described above, fair use was successfully raised and I believe that this was the proper decision looking at the factors of fair use. It was a very short clip that added new meaning to the material used by giving the bands feelings going into the show. Since it was such a short clip it was not as if they were using the entire episode of the “Ed Sullivan Show” but rather they just used a small segment that did not pull from the core of the show. Lastly the show has long since ended, so the use of the clip does nothing to hurt its marketability. (Larson, 2013) While it is important to protect intellectual properties this does not mean that fair use cannot also be allowed. Protecting intellectual properties is important, because it protects the work of individuals without allowing others to just steal or copy their work without permission. If IPs were not protected, then no one would be able to make money from their creations because someone else could just make their own version that they sell, essentially stealing money from the original content creator. At the same time it is important for society to be able to take existing properties and use them in new ways, as long as that use does not hurt the original content creator. While something like a parody on SNL may not be critical to society, parodying existing work is allowed because it adds a new element to the original work rather than being just a straight copy of it. Due to the regulations of fair use put in place I do not believe it hurts the content producers because it is set up in such a way that if the unlicensed use of copyrighted material does hurt the creator then it does not qualify as fair use.

References
Stim, R. (2013). Fair Use. Retrieved November 16, 2014, from http://fairuse.stanford.edu/overview/fair-use/
Larson, E. (2013). Jersey Boys' Use of Ed Sullivan Show Clip Is Fair Use, Ninth Circuit Affirms | JOLT Digest. Retrieved November 16, 2014, from http://jolt.law.harvard.edu/digest/jurisdiction/9th-circuit/jersey-boys-use-of-ed-sullivan-show-clip-is-fair-use-ninth-circuit-affirms