CHICAGO — A federal judge has determined the use of “Super Bowl Shuffle” snippets in a documentary film doesn’t violate copyright protections.
Red Label Music Publishing filed a federal lawsuit alleging Chiba Productions used clips of the famous 1985 Chicago Bears music video without first securing written permission. The filmmakers claimed fair use protections, saying their movie was only an historical commentary on the legendary football season that used on brief excerpts.
In an opinion filed May 30, Judge Virginia Kendall said the film in question is titled “’85: The Greatest Team in Football History.” She explained filmmakers Richard Lenkov and Scott Prestin included a segment that lasted six minutes and 11 seconds on the role the “Super Bowl Shuffle” played in the season .
“That portion of the film features eight seconds of the song’s music, only four of which contain lyrics,” Kendall wrote. It also shows 59 seconds of the music video, broken into 16 clips lasting between one and eight seconds — the audio and video appear together on only one eight-second snippet.
“As a general matter, fair use is not an insufficient defense in a copyright infringement case,” Kendall wrote, calling Red Label’s motion to strike Chiba’s affirmative defense a stalling attempt. She said Red Label “added unnecessary briefing when all the Court needed was their response in opposition to the defendants’ motion for judgment on the pleadings, or, a real cross-motion.”
Kendall said Chiba’s affirmative fair use defense was “not a model pleading by any stretch of the imagination,” yet still provided enough allegations to allow her to “draw the reasonable inference that they are not liable for the misconduct alleged,” leading her to deny Red Label’s motion.
The Copyright Act established four factors for consideration, Kendall wrote, including how material was used, the nature of the copyrighted work, how much was used and if the use affects the value of the protected material.
Kendall said the filmmakers used the “Shuffle” as a factual component of the 1985 Bears season, not merely as musical enhancement. She noted “the song’s title, the ‘Super Bowl Shuffle,’ never appears in the relevant clips,” and said the video “is not serving its original function of entertainment in the film.” Although Chiba made the film for profit, Kendall said the “Shuffle” clips as used don’t provide commercial gain.
The “Shuffle” is no doubt under copyright protection as a creative work, Kendall continued, but the way it’s used in the documentary diminishes the importance of its creativity in terms of copyright protection, rendering the second factor neutral. The third factor tips in favor of the filmmakers, as Kendall noted the movie uses only 17 percent of the “Shuffle,” and that portion accounts for 1 percent of the documentary.
Kendall said the market effect factor usually is the most important, writing “no one would purchase the right to view ‘ ’85’ as a substitute for purchasing the ‘Shuffle.’ It is frankly inconceivable that hearing a clip of the song in the documentary would dissuade a listener from purchasing it if she was otherwise predisposed to do so.”
Still, music publishers are owed royalties, she added, and Red Label has established a market through “Shuffle” licensing agreements. But Red Label “failed to articulate any tangible way” the documentary will reduce that market. Also, Chiba isn’t competing with Red Label “in any way, shape or form.”
Though she granted summary judgment in favor of Chiba, Kendall said the decision doesn’t affect anyone else who might use the “Shuffle” in the future, nor should it be seen as an indicator Red Label will or should eschew future litigation to protect its copyright.
Red Label has been represented in the case by attorney William W. Flachsbart and others with the firm of Flachsbart & Greenspoon LLC, of Chicago.
The filmmakers have been represented by attorney Blaine C. Kimrey and others with the firm of Vedder Price PC, of Chicago.