COURT FINDS USE OF “SUPERBOWL SHUFFLE” IN DOCUMENTARY WAS “FAIR USE”
Steven T. Lowe
Following up on our December 13, 2018 article entitled “Claim Filed On Behalf of Writers of Song ‘Super Bowl Shuffle’”: On May 30, 2019, U.S. District Judge of the Northern District of Illinois, Virginia M. Kendall, ruled that the owners of the “Super Bowl Shuffle”- a song made famous by the 1985 Chicago Bears (the “song”)- are barred from recovering against documentary filmmakers for including the song in a documentary about the Super Bowl-winning team.
The use of the song in the 2016 film “85: The Greatest Team in Football History” was found not be n infringement based upon copyright law’s “fair use doctrine,” which allows for the use of copyrighted material in critical or historical works: “Fair use protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes… In passing the Copyright Act, Congress never intended to discourage the makers of all sorts of historical documentaries and displays, or deplete society’s fund of informative speech,” U.S. District Judge Virginia M. Kendall wrote.
“Greatest Team,” released in 2016 by filmmaker Scott Prestin, was a documentary based on the 1985 Chicago Bears and the people, including former coach Mike Ditka and famous Chicagoans like Bill Murray and President Barack Obama, that surrounded them.
In October 2018, a company called Red Label Music Publishing Inc., which owns the rights to the song, sued Prestin and others for copyright infringement.
Judge Kendall wrote in her ruling that “the documentary featured just eight seconds of the song’s audio and 59 seconds of the music video, which it split up into smaller clips that serve a ‘transformative’ purpose in the new film…The film uses snippets of the ‘Super Bowl Shuffle’ as part of the historical record to tell stories of past drafts, major events in Bears history, and player careers…The filmmakers, then, used the ‘Super Bowl Shuffle’ not for its expressive content, but rather for its factual content.”
It’s unusual for courts to find that music licensing is not required, and that the use of music is a “fair use”; otherwise, documentaries could access music libraries free of charge. This finding of fair use appears to be an exception to the rule.
The plaintiffs are represented by Robert P. Greenspoon, William W. Flachsbart and Michael R. La Porte of Flachsbart & Greenspoon LLC.
The defendants are represented by Blaine C. Kimrey and Jonathon P. Reinisch of Vedder Price PC.
The case is Red Label Music Publishing Inc. et al. v. Chila Productions et al., case number 1:18-cv-07252, in the U.S. District Court for the Northern District of Illinois, Eastern Division.
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