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Frankie Valli Faces Suit on Four Seasons Rights

(CN) - The 9th Circuit on Tuesday revived claims by the widow of a ghostwriter for a share of "Jersey Boys," the hit musical on Frankie Valli's band, The Four Seasons.

Donna Corbello says that her late husband, attorney and journalist Rex Woodward, struck a deal in 1988 to split the proceeds of a ghost-written book about the life of former Four Seasons guitarist Tommy DeVito.

Woodward died in 1991 with the book unpublished, and Corbello claims that DeVito copyrighted the manuscript under his name alone that same year.

Years later, in 1999, DeVito got together with former bandmates Frankie Valli, Bob Gaudio and Nicholas Macioci to develop a musical about the Four Seasons.

According to the 9th Circuit's retelling of events, DeVito and Macioci granted Valli and Gaudio the exclusive right to use events from their lives in the musical, waiving all copyright claims to their biographies, names and likenesses.

After an initial partnership with a producer foundered, Valli and Gaudio signed over the band's music and its members' names, likenesses and life stories to Dodger Theatricals in 2004.

The musical "Jersey Boys" opened on Broadway in 2005 and was a huge hit, winning four Tony awards and spawning world tours and a motion picture.

Corbello meanwhile says she knew nothing about DeVito's deal with his bandmates. She says she contacted DeVito just before "Jersey Boys" debuted and suggested they try to publish the manuscript, but that DeVito turned her down and said it was "not saleable."

Corbello says she didn't find out until 2006, after the worldwide success of the musical, that DeVito had already copyrighted the manuscript alone. She then convinced the U.S. Copyright Office to add her late husband as co-author and co-claimant, and later filed a federal complaint against DeVito in Las Vegas for, among other things, breach of contract, copyright infringement and equitable accounting.

Corbello claimed in her lawsuit that "Jersey Boys" was in part a "derivative work" of the unpublished autobiography. She claimed that, as the heir of a copyright holder of that work, she was entitled to some of the profits.

U.S. District Judge Robert Jones did not agree, however, granted the defendants summary judgment on all of Corbello's claims.

The ruling found that DeVito had not given his bandmates a copyright interest in his story, but rather had granted them a "selectively exclusive license" in which Corbello had no interest.

A three-judge appellate panel in San Francisco reversed Tuesday, answering in the affirmative "whether a contractual grant of the exclusive right to use an individual's 'biographies' to create a Broadway musical stage play also constitutes a transfer of a copyright ownership interest in that individual's unpublished autobiography."

Since DeVito had granted Valli and Gaudio the "exclusive right to use" his "biographies" in 1999, "whether classified as an exclusive license or an assignment," that agreement "constitutes a transfer of ownership of DeVito's derivative work right in the work to Valli and Gaudio," the ruling states.

"The 1999 agreement constituted a transfer of DeVito's derivative-work interest in the copyright, rather than a license," Judge Diarmuid O'Scannlain wrote for the court. "Therefore, appellees have necessarily failed to establish the existence of a license as an affirmative defense to Corbello's infringement action."

Questions remain as to whether the agreement's reversionary clause later terminated Valli and Gaudio's ownership right in the manuscript, the court added. Corbello claims that Valli and Guadio breached the clause requiring them to execute a new production agreement within two years of the first one falling through. She says Valli and Guadio didn't sign the new agreement until Oct. 27, 2005, more than two years after the previous producer's rights had expired in December 2002.

Dodger Theatricals President Michael David meanwhile told the court that the parties reached an oral agreement before Dec. 10, 2004.

"Jersey Boys" officially opened on Broadway on Nov. 6, 2005.

"In the face of such contradictory evidence regarding whether the reversionary clause terminated Valli and Gaudio's derivative-work right, disputed material facts preclude summary judgment as to Corbello's infringement claims based on Valli and Gaudio's ownership of the copyright interest," Judge O'Scannlain wrote.

The panel reversed summary judgment on all points and sent the case back to Las Vegas.

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