Football History documentary found to be a fair use of Superbowl Shuffle. RED LABEL v. CHILA

Football History documentary found to be a fair use of Superbowl Shuffle. RED LABEL v. CHILA

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  Expressive works such as music, choreography, and movies are all eligible for copyright protection.  A creator is granted a copyright when they fix their expressive work in a tangible medium.  This means that when a creator saves their sheet music to a hard drive, writes down the instructions for a dance routine, or records a video of their performance, they are granted a copyright to their work.  Registration of the copyright will grant the creator additional right, but registration is not necessary for a copyrighted to be granted.  A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original.  If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement.

Copyright law grants a copyright owner significant control over a work, however there are some limits to the rights granted by copyright law.  Copyright is intended to promote the progress of useful arts and science by protecting the exclusive right of creators to benefit from their works.  However many creators are inspired by their predecessors.  Therefore copyright law will allow creators to borrow a certain amount of inspiration from copyrighted works owned by others.  This allowed borrowing is generally referred to as fair use. In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

Fair use is an affirmative defense to copyright infringement.  This means that a copyright defendant must plead the defense and present evidence to the a court to demonstrate that their use qualifies as a fair use.   17 U.S.C. § 107 of United States Copyright Law outlines the following four factors in evaluating a question of fair use: (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.  No single factor is determinate of fair use and courts are free to find fair use even if three out of the four factors disfavor fair use.  Because the fair use factors are open to interpretation it is beneficial to study precedent to see how the courts have applied the fair use analysis to certain fact patterns.

RED LABEL MUSIC PUBLISHING v. CHILA PRODUCTIONS. 18-cv-7252 (N.D.IL 2019) is a case which applies copyright fair use in the context of a documentary video.  The plaintiff in this case owns the copyrights in the words, music, sound recording, and video of the “Super Bowl Shuffle”, a hip-hop song and music video featuring members of the Chicago Bears.  The video was recorded in 1985 while the team was traveling to Super Bowl XX.  The Bears won the game.

The defendant created a documentary video about the 1985 Chicago Bears.  The documentary was titled: ’85: The Greatest Team in Pro Football History and was published in 2016.  The documentary was about 90 minutes long. At various points of the documentary, 16 clips of the plaintiff’s copyrighted video was displayed.  Those 16 video clips totaled 59 seconds of time.

The plaintiff sued for copyright infringement, the defendant claimed that their use of the plaintiff’s video was a fair use and requested summary judgment.  The court weighed each of the fair use factors in turn.  The court found that the purpose and character of the use, favored fair use because the clips were used as factual content to tell a historical narrative.  The court found that the defendant used the clips to make a documentary for profit, but the clips were incidental to the creation of a historical documentary. With respect to the second factor the court found it to be neutral.  With respect to the third fair use factor, the court noted that the defendant only used seventeen percent of the music video, which was “no more than necessary” to serve as a historical reference point in the documentary.  The fourth fair use factor, the effect upon the potential market for the plaintiff’s work, the court found neither party was favored.  The plaintiff demonstrated some licensing revenue, but failed to demonstrate harm from the defendant.  Moreover, the defendant’s work was no substitute for the plaintiff’s video.  Taking all these factors together, the court determined that the defendant’s use was a fair use and granted the defendant’s motion for summary judgment.

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