Fair Use Prevails in the 9th Circuit

In SOFA Entertainment v. Dodger Productions (9th Cir. Mar. 11, 2013), the Ninth Circuit not only affirmed summary judgment for the defendant on fair use, but also affirmed an attorneys’ fees and costs award for the defendant of $155,000. The issue was defendant’s use of a 7-second clip from a 1966 episode of the Ed Sullivan Show. The analysis was straightforward. The court went through each of the four fair use factors, finding each one favored the defendant: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Notable observations include:

1. The court noted the clip was used as a “biographical anchor” and cited to decisions finding the use was as a “historical reference point.”
2. Because the use of the clip was transformative, it didn’t matter that Defendant’s use was for a commercial purpose.
3. Opining that SOFA actually sought to protect Sullivan’s personality, the court added, “Charisma, however, is not copyrightable.”
4. In the end, “society’s enjoyment of [defendant] Dodger’s creative endeavor is enhanced with its inclusion.”

On the attorneys’ fees award, the court said it agreed with the district court that “lawsuits of this nature…have a chilling effect on creativity.”

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