Ed Sullivan vs. the Jersey Boys
A long time ago, about 50 years ago, in the 1960’s, there was a band from New Jersey called the Four Lovers. When they failed at a 1960 audition to be the lounge singers at a New Jersey bowling alley called the Four Seasons, they re-named the band after the bowling alley, just so they could get something out of audition. In just a few years, they were the United States’ second-most popular band after the Beach Boys. They were the sort of band my mother (who grew up pretty close by in Philadelphia) loved: handsome, blue-collar, immigrant (the members were all Italian-American), smooth, well-groomed, a rock n’ roll band that was more pop than rock.
Even if you’re in your 20’s, you have heard of their songs, and you recognize Frankie Valli’s astounding falsetto, in songs like “Big Girls Don’t Cry,” “My Eyes Adored You” and “Rag Doll.” Ironically, the Four Seasons came from tough backgrounds, but worked hard to appear clean-cut, whereas later rock bands affected the kind of street-tough backgrounds the Four Seasons tried to hide.
Even after the Beatles arrived, the Four Seasons remained immensely popular. Indeed, they were one of the few American bands to consistently chart during the British Invasion. Thus it was, during the height of Beatlemania, on January 2, 1966, the Four Seasons appeared on the Ed Sullivan Show, which was perhaps the premier venue for popular music. It was, after all, an appearance one the Ed Sullivan Show that propelled the Beatles to fame in the United States. For the show, the Four Seasons perform “Dawn,” a song that would have been no. 1 if it weren’t for three intervening Beatles songs.
In 2005, one of the original Four Seasons, Bob Gaudio, and long time Four-Seasons producer, Bob Crewe, decided to tell the story of the Four Seasons, much of which was deliberately hidden during the heyday of their clean-cut popularity. Obviously, it would be a “jukebox musical,” but with a narrative twist: the musical would be divided into four acts (“spring,” “summer” etc.), and each act would be told from the point of view of a different member. The musical, called Jersey Boys, was (and remains) pretty much a huge smash.
At the end of the first “season,” the actor playing Gaudio himself announces: “Around this time there was a little dust-up called The British Invasion. Britannia’s ruling the air waves, so we start our own American revolution. The battle begins on Sunday night at eight o’clock and the whole world is watching.” Gaudio and the other Four Seasons (on stage) begin to act as though they were preparing for an appearance on the Ed Sullivan Show. Then, on a giant screen above the stage, a seven-second clip from the January 2, 1966, Ed Sullivan Show is played: the part where Ed Sullivan adopts the “Ed Sullivan pose*,” then proclaims: “Now ladies and gentlemen, here for all of the youngsters in the country, the Four Seasons!” The screen goes dark, and the actors then perform (live on the stage) “Dawn.”
* I love Ed Sullivan. Classic so-square-he’s-hip guy.
After the song ends, Gaudio resumes talking to the audience:
We weren’t a social movement like The Beatles. Our fans didn’t put flowers in their hair and try to levitate the Pentagon. Maybe they should have. Our people were the guys who shipped overseas . . . and their sweethearts. They were factory workers, truck drivers. The kids pumping gas, flipping burgers. The pretty girl with circles under her eyes behind the counter at the diner. They were the ones who really got us, and pushed us over the top.
One day, Andrew Solt attended a performance of Jersey Boys. One imagines that he enjoyed every bit, except the seven-second clip. Why? Because he ran the company that owned the copyright in the Ed Sullivan Show, SOFA Entertainment. This, to his mind, was a clear case of infringement, and SOFA duly sued the companies that produced Jersey Boys.
The defendants could hardly pretend they hadn’t used SOFA’s copyright material, but they felt they had a strong case for fair use and defended themselves on that basis.
Were the defendants right? Review the contours of fair use, then click here to see how the Ninth Circuit* recently decided the case.
* Speaking of the contours of fair use, the Ninth Circuit, after complaining about the uselessness of the four statutory factors, incorporates a famous quote from the seminal fair-use opinion, Justice Story’s opinion in Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass 1841) (and from which the four factors are originally derived):
Congress’s guidance, however, has not always been helpful. Many fair use cases still manage to approach “the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”
(Internal quotation marks omitted.)
Great article, Rick – I’m a friend of Tara’s and spent some time in Philly, Oct 87-Jan 89, while my ship was being worked on at the old Navy Shipyard. It’s also pretty wild how The Four Seasons & The Beatles were even tied together through the same label, Vee-Jay Records, in the early days. The Seasons were already inked and as Capitol didn’t want any of the Fabs’ material until post-Sullivan, Vee-Jay jumped into the breach. A real good story about the fate of Vee-Jay from NPR: http://www.npr.org/templates/story/story.php?storyId=18112344
Thanks, again!
Thanks for the comment and the info about Vee-Jay Records. Sounds like Vee-Jay’s demise was the result of way too much of a good thing….
Thanks for the interesting background to the Jersey Boys case. But you might have gone a bit farther to point out that Judge Trott, who authored the 9th Circuit decision, is himself one of the original Highwaymen., the most successful singing ‘boy band’ before the Jersey Boys. So can we entirely discount the possibility that he may still be smarting from the Highwaymen having seen their 1961 hit ‘Michael Row the Boat Ashore’ displaced in the charts by the Jersey Boys ‘Sherry’ in 1962?
OK, probably not. But it is amazing to realize that a music law case of this kind actually got assigned to a Judge with such direct experience of the recording business!
I had no idea about the connection–and apparent coincidence. In theory, panels are assigned randomly, but they don’t have to be… Anyway, I wish I had known before I wrote the post, but thanks for making the connection in the comments!
Unless I’m wrong, the Four Seasons never performed “Dawn, Go Away” on the Ed Sullivan show.
I assumed they did, but re-reading the opinion, it’s not clear what song they were about to perform on the Ed Sullivan Show, only what song (“Dawn”) is played on stage just after the use of the Ed Sullivan Show clip. All Ed Sullivan says is the name of the band, not the song. I suppose the producers of the musical didn’t need to be historically accurate (the obvious implication was that the musical was re-enacting the performance on the Ed Sullivan Show). Not that it changes the analysis, since it’s the Ed Sullivan Show clip that matters, not what song is played.