‘Jersey Boys’ Copyright Dispute Now in Jury’s Hands

jersey-boys-vegasRENO, Nev. (CN) – Tasked with sorting through the intricacies of copyright law, 12 days of testimony and about four hours of closing arguments, jurors have begun deliberating whether the creators of the “Jersey Boys,” the hit Broadway musical based on the Four Seasons singing group, unlawfully took copyrighted material from an unpublished book.

The jury of six men and three women received the case late Monday afternoon in the courtroom of U.S. District Judge Robert C. Jones and will have plenty of legal work to do.

Jurors, who received 33 instructions, first must determine if “Jersey Boys” creators had an implied license from Four Seasons member Tommy DeVito to use his unpublished autobiography, which was written by the plaintiff’s late husband.

If they reject that affirmative defense, they have to weigh in part whether the book served as the basis for the musical’s story lines or if the play’s script and the book share a small number of minor similarities—mostly common words or phrases—that can’t be owned by anyone.

Next, if jurors do find copyright infringement, they have to decide if the defendants had the right to take material from the book through the fair-use copyright exemption.

The defendants’ lead attorney, David Korzenik, has stressed that the jury really only needs to review two pieces of evidence – a videotaped Broadway performance of “Jersey Boys” and the unpublished book – to find that no copyright infringement occurred.  Jurors will have both at their disposal in the jury room.

“Keep in mind, if it’s not in the final (script), it’s not in this case,” Korzenik told the jury in his closing argument, describing the plaintiff’s case as “classic proof failure,”  a “deeply mistaken understanding of the extent of copyright protection,” and “irrelevant sideshows.”

Most of the similarities between the book and the musical cited by the plaintiff are single words or common two or three-word phrases that aren’t even close to being original creative expressions protected by copyright, he argued.

He also said other similarities are vague and that historical events and their interpretations can’t be protected by copyright, apart from the particular expressive words used to relate them.

In his closing for the plaintiff, attorney Robert McKirgan told the jury that the writers of “Jersey Boys,” under incredible pressure to come up with a script that conformed to the director’s desire to take the musical in a new direction, found that new direction just in time when the unpublished book – known legally as the “work’’ – landed in their laps.

The writers “mined the work to make the play more entertaining,” he said.

They “clearly had their nose in the work,” and “that’s the problem,” said McKirgan, who urged jurors to look at the origin of similarities between the book and the musical to see if they came from the book or an independent source.

He also asked jurors to keep in mind that a derivative work is created by recasting, transforming or adapting a pre-existing work and the need to distinguish between an actual event and the writing of that event.

Plaintiff Donna Corbello brought the copyright suit in late 2007.  Her late husband, Rex Woodard, a Texas lawyer and Four Seasons fan, wrote the unpublished book about DeVito. Woodard completed the book in 1990, a year before he died.

Four months before Woodard’s death, DeVito registered the book with the U.S. Copyright Office under his name. Corbello, however, didn’t learn of the copyright until 2006 when she and her sister-in-law tried to get the book published amid the success of “Jersey Boys.” Corbello then added her late husband as a co-author in the copyright registration.

“Jersey Boys,” which opened on Broadway in 2005, captured four 2006 Tony awards, including Best Musical.  The play depicts the rise of the Four Seasons, who had a number of hit songs in the 1960s.

The list of defendants in the case has shrunk. DeVito has settled with the plaintiff, and the details have not been disclosed publicly.

The judge dismissed the case against two other Four Seasons members named in the suit, Frankie Valli and Bob Gaudio. In releasing them, the judge said the evidence established that neither even saw the copyrighted work until their depositions in the case.

“Jersey Boys” writers Eric Elice and Marshall Brickman, director Des McAnuff, and Michael David, head of the musical’s primary production company, remain as key defendants. All of them testified.

The attorneys’ closing arguments, in addition to outlining their blueprints of the case, also featured criticism of the other side’s tactics.

Korzenik accused the plaintiff of playing a game of “where’d you get it?” He also said the plaintiff is trying to spread the zone of copyright protection out of a few words or phrases that does not fit with common sense or the law.

McKirgan criticized the defendants’ use of “buzzwords,” particularly their references to “historical events” that aren’t protected by copyright, and the use of the unpublished book for “research.”

The plaintiff’s lawyer said copies of the book were distributed to the “Jersey Boys” writers and director and that the evidence showed that material from the book was copied onto note cards, outlines of the play and draft scripts.

That drew a rebuttal from Korzenik, who told the jury that the plaintiff spent a lot of his time talking about everything except the relevant final script.

Korzenik also called the plaintiff’s contention that the musical had nothing going for it before the discovery of the book a “big-bang theory.”  That theory, he said, is completely debunked by the hours of research and interviews conducted by the musical’s creators and the completion of a prior outline or treatment for the play known as “Oh What a Night,” named after a Four Seasons hit song.

He said arguments that the defendants didn’t have enough knowledge of the Four Seasons and that they can look at research but do nothing with it don’t make sense.

McKirgan, in other arguments, questioned the credibility of the defendants. He said that after years of denial they now claim that if they copied, the copying involved only unprotected facts.

He said words common to the musical and the book are “fingerprints of copying” and argued that the copying was not de minimis.

The jury will deliberate until 4 p.m. Tuesday before breaking for the Thanksgiving holiday. If no verdict is reached, they will continue deliberations on Nov. 28.

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