LAS VEGAS (CN) — A federal judge set Halloween for a jury trial in a multimillion-dollar copyright fight over the hit musical “Jersey Boys,” between a writer’s widow and former members of the Four Seasons.
U.S. District Judge Robert Jones denied motions for summary judgment from Donna Corbello, the widow of Rex Woodard, who in 1981 helped defendant Thomas Gaetano DeVito write an unpublished autobiography of DeVito’s life as a founding member of the Four Seasons.
Woodard stayed in contact with DeVito and Four Seasons member Frankie Valli throughout the 1980s, and in November 1988 flew to Las Vegas to conduct a series of interviews with DeVito that eventually led to the lawsuit.
During the interviews, DeVito told Woodard that he and Four Seasons member Nick Massi “spent several years engaged in criminal enterprises and in prison and retained ‘underworld contacts’ throughout the band’s era of popularity,” Jones wrote in the Aug. 3 ruling and order.
DeVito offered to let Woodard write his authorized biography that would remove the clean-cut veneer with which the Four Seasons had been regarded, and offered to give Woodard an equal share of profits, Jones wrote in his summary of the case.
Woodard and DeVito signed an agreement giving Woodard an equal share of profits, and in late 1990 they gave an outline of the story to actor Joe Pesci for potential adaptation into a screenplay.
Woodard was diagnosed with lung cancer in 1989, became bedridden in early 1991, and died that May at 41. He hoped that profits from the book would support his wife and children.
Corbello and Woodard’s sister, Cindy Ceen, continued searching for a publisher, but decreased interest in the Four Seasons made it a tough sell. Ceen contacted DeVito in 2005, seeking help finding a publisher, and gave a copy of the manuscript to DeVito, and Corbello says they never heard from DeVito after that.
They did, however, hear from DeVito’s attorney, who in November 2005 told Corbello the book was “‘not saleable,'” she says.
“Ceen was surprised by this conclusion, because the play ‘Jersey Boys’ was scheduled to open on Broadway a few days later,” Jones wrote, citing the third amended complaint.
“Jersey Boys” became a hit Broadway musical and won four Tony Awards, and Corbello says she thought it would boost interest in DeVito’s unpublished work.
In early 2007, Corbello says, she learned that DeVito had registered a literary work called “Tommy DeVito — Then and Now.” DeVito registered it four months after her husband died in 1991, she says.
Corbello’s attorney obtained a copy of DeVito’s book, which Corbello says is identical to the work her husband did, and “in fact appeared to be a photocopy of the manuscript typed by Woodard’s secretary.”
She says the “Jersey Boys” writers and several actors had access to the work, that DeVito received royalties and profits based on it, and in an article published by Backstage magazine in 2006 the show’s director acknowledged that the libretto for the show used information from an “‘unpublished autobiography by DeVito.'”
Corbello sued in the Eastern District of Texas in December 2007, seeking declaratory judgment, an accounting and damages for breach of contract.
She says that “‘Jersey Boys’ has earned profits of approximately $150 million per year, with a life expectancy of at least 10 years, and believes she is entitled to at least $6.5 million.”
Four subsequent summary judgments pared down the contested claims, affirmed that Woodward co-owned the manuscript, and that DeVito held a 50 percent interest in it in a constructive trust for Corbello as Woodard’s widow and successor-in-interest, Jones wrote.
The judge also found that in 1999, DeVito gave an implied exclusive license to Valli and Gaudio to use material in his autobiography.
Corbello sought summary judgment against the “implied exclusive license” defense by Valli and Gaudio, but Jones denied it, saying the Ninth Circuit “stressed the uncertainty of this issue.”
A 1999 agreement made Valli and Gaudio joint owners of the work, with Corbello, and Jones said that means it’s impossible for Valli and Gaudio to infringe upon copyrights while jointly owning it.
A jury must determine whether a reversionary clause leaves Valli and Gaudio liable for copyright infringement during the time they did not jointly own the work.
If infringement did occur, Jones said, the jury must determine if DeVito granted Valli and Gaudio an “implied, non-exclusive license,” which would negate any infringement claims.
A jury also must determine whether infringement occurred due to direct copying or substantial similarity.
Corbello also sought summary judgment on whether the 1999 agreement lapsed due to an included reversionary clause. Jones denied the motion, as the Ninth Circuit found a “genuine issue of material fact on that point to be resolved at trial.”
Jones also said that a prior court finding of “‘thin’ protection” was made in error and that it is possible to violate copyright protections when there are substantial similarities between works and there is proof of access to the infringed work.
Jones also denied several motions for summary judgment from the defendants.
Because “Jersey Boys” is a commercial enterprise, the fair-use defense does not apply, because the user stands to profit by exploiting copyrighted material without paying a customary fee.
Jones also delayed defendants’ motion for summary judgment of foreign infringement claims in the United Kingdom, Canada and Australia. There is expert opinion available on the claim from plaintiffs and defendants alike, and the court will wait to hear their testimony before ruling on the motion.
Jones ordered a jury trial in the matter on Oct. 31.
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