Clips of Super Bowl Shuffle in Documentary is Fair Use

Recently, the United States District Court for the Northern District of Illinois issued an opinion in Red Label Music Publ., Inc. et al. v. Chila Prods. et al., No. 18C7252 (N.D. Ill. May 30, 2019). Plaintiffs owned copyrights in the words, music, sound recording, and video of the 1985 Chicago Bears Super Bowl Shuffle (the “Work”). Plaintiffs alleged Defendants infringed by including clips of the Work in a documentary without permission. Defendants moved for summary judgment of fair use. After rejecting Plaintiffs’ motion to strike the fair use defense as procedurally improper, the Court moved to the merits of Defendants’ motion. The Court addressed each of the four factors set forth in the Copyright Act for assessing fair use. 

First, in discussing the purpose and character of the use, the Court determined the documentary used snippets of the Work as part of a historical record to comment on the sport-social phenomenon of the 1985 Chicago Bears. The Court explained the Work was used “not for its expressive content” or for its original purpose of entertainment, but “rather for its factual content.” Next, the Court concluded the second factor—the nature of the copyrighted work—was neutral. Although the Work was creative and protected, use of the Work for its historical facts lessened the importance of the Work’s creativity. For the third factor—the amount and substantiality of the portion used—the Court determined the use of 8 seconds of song and 59 seconds of video in the context of a 100-minute long documentary constituted minimal use. Lastly, the Court assessed the fourth and most important factor—the effect of the use upon the potential market, asking “whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).” The Court concluded the documentary use was not a substitute for the Work. The Court noted that complete assessment of this factor requires assessing the market for licensing of derivative works. Because in this case Plaintiffs did not present evidence showing reduction in the potential licensing market, and the parties did not compete, the Court concluded the factor was neutral. Having concluded that the first and third factors weighed in favor of fair use, with the second and fourth factors being neutral, the Court granted Defendants’ motion and entered final judgment against the Plaintiffs. The case is now on appeal to the Seventh Circuit.

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