“While the court cautioned against using its opinion as a model for future secondary uses, if it is not appealed, the case does provide hints of how creators wishing to use original audio-visual material should approach such use.”
The Eighties are in! A contagious wave of nostalgia has infected popular culture with period TV series, from shows like Stranger Things to rebirths and reboots of the era’s shows and movies. This retro cultural appropriation was bound to involve a copyright issue. Indeed, a dispute arose over a documentary on the 1985 Chicago Bears, which made an unauthorized use of the team’s landmark music video, The Superbowl Shuffle. The Shuffle’s owners claimed an infringement on the licensing market for the work. The documentarians claimed fair use. The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled for the documentarians, granting them summary judgment, in Red Label Music Publishing v. Chila Productions.
The Shufflin’ Crew
The 1985 Chicago Bears were as iconoclastic as they were iconic, featuring a legendary band of misfits and colorful characters, from quarterback Jim McMahon, with his trademark headband messages, to William “Refrigerator” Perry, a defensive tackle who moonlighted as an offensive lineman. Outside of their aggressive play and nearly perfect season, the Bears also immortalized themselves in a prime facet of 80s culture—the music video. The video, featuring McMahon, Perry and eight other dancing and rapping players, together dubbed the Chicago Bears Shufflin’ Crew, was made for fans and to raise money for charity. It became a hit, selling hundreds of thousands of singles, thousands of videos and reaching number 41 on the Billboard Top 100. It even won a Grammy nomination. Some players credited the video with helping the team rebound from their only season loss, to the Miami Dolphins, and secure the Super Bowl championship in 1986.
The Super Bowl Shuffle was no stranger to litigation in the years that followed. The rights owners of the work zealously guarded the use of the Super Bowl Shuffle song and video. For-profit uses commanded a significant fee—apparently, the cost of using the Shuffle was too high for commemorations of the 20th anniversary of the ‘85 Bears—and unauthorized performances earned cease and desist orders and lawsuits.
Shufflin’ Into Court
Despite this history, the documentarians making a film celebrating the team’s 30th anniversary, titled 85: The Greatest Team in Football History, decided to use footage from Shuffle. Fifty-nine seconds of the video, divided into segments one to eight seconds long, were used. These included eight seconds of music with four words of song lyrics to set the context for historical discussion of the Bears’ rebounding from their loss. The rest of the video clips, without the accompanying music, played with the dialog of commentators. No individual Shufflin’ Crew player verses were used. Neither was the Shuffle’s chorus. Given the owners’ past actions, litigation over this use was, perhaps, inevitable. Indeed, the Shuffle’s owners brought a copyright infringement action against the makers of the documentary.
The court held that the documentarians had made fair use of the Super Bowl Shuffle under the copyright defense’s four factor test, which balances 1) the nature of the use; 2) the nature of the work; 3) the amount used; and 4) the secondary work’s effect on the market for the original. 16 U.S.C. 107.
The court found for the documentarians on the first issue, as the original Shuffle and the secondary work of the documentary served different purposes. While the original was created to entertain fans and raise money for charity, the secondary work used audio and video fragments from the Shuffle to tell the history of the Bears’ 1985 season. The court dismissed the plaintiffs’ argument that the documentary’s commercial purpose negated granting a fair use on the pleadings , noting use of brief clips played only an incidental role in the documentarians’ commercial goals.
As for the second factor, the court acknowledged the original’s obvious creativity, but found this factor was limited to neutral by the documentarians’ use.
With the third factor, the court found the fractional uses of the original work–2% of the song, and 17% of the performance, which constituted 1% of the secondary work–were “no more than necessary to serve as a historical reference point in the commentary.” It gave this factor to the documentarians.
The fourth factor typically involves the most analysis, and such was the case with the Shuffle. The court was skeptical that the documentarians’ use would have any significant market effect on the original, stating it was “inconceivable” that the documentary would deter fans from purchasing the Shuffle. Still, one of the plaintiffs’ key arguments was that they licensed clips of the song and the defendants’ use was an infringement of that market. The court stated that argument might make sense if the defendants were in the same business as the plaintiffs–selling audio visual clips in general and Shuffle clips in particular. However, the parties operated in different markets. Again, the court did not believe interested parties would buy the documentary from its creators instead of clips from the original’s owners. The court found this factor did not weigh toward either path.
Weighing the four factors together, the court found that they favored the documentarians.
A Roadmap for Creators
While the court cautioned against using its opinion as a model for future secondary uses, if it is not appealed, the case does provide hints of how creators wishing to use original audio-visual material should approach such use, i.e. using fragmentary clips including some without sound to give commentary historical context. This was a similar approach to that used in print in the famous fair use case of Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-10 (2d Cir.2006). In that case, a publisher used thumbnail images of Grateful Dead posters as historical markers for a book on the band’s history. Perhaps a base line for fair use can be found in the court’s quote of Monster Commc’ns, Inc. v. Turner Broad. Sys., Inc., 935 F. Supp. 490, 495 (S.D.N.Y. 1996) to say that the documentarians’ use of the Shuffle was “too few, too short, and too small in relation to the whole.” At the very least, the case is a chance to remember a fun part of 80s pop culture.