RENO, Nev. (CN)—Citing the fair-use doctrine, a federal judge overturned a jury verdict and ruled that the creators of “Jersey Boys,” the smash Broadway musical based on the Four Seasons band, did not violate the copyright of an unpublished book about a member of the group.
In a 38-page decision that focuses on elements of the fair-use exemption to copyright infringement, U.S. District Judge Robert C. Jones concluded Wednesday that the musical’s writers, director and producers are entitled to a judgment in their favor as a matter of law.
His decision tosses a unanimous verdict by a jury of six men and three women announced in his courtroom last November after a 15-day trial.
The jury, which the judge said faced a difficult task in a complex case, found that “Jersey Boys” writers Eric Elice and Marshall Brickman, director Des McAnuff and primary producer Michael David, as well as five corporate entities involved in the musical, infringed the book’s copyright. Jurors also determined that 10 percent of the musical’s success is attributable to the infringement.
The judge determined that the jury, at most, could have found that about 145 creative words were copied into the play from the book—legally referred to as the “work”—either as dialogue or creative descriptions of events.
“Those 145 words constitute about 0.2% of the approximately 68,500 words in the work,” Jones wrote in his order. “This factor strongly weighs in favor of a finding of fair use, at least where the ‘heart’ of the work was not infringed.”
In her suit, filed in 2007, plaintiff Donna Corbello claimed the defendants unlawfully used the unpublished autobiography of Tommy DeVito, one of the founding members of the Four Seasons, in creating the “Jersey Boys” script. Her late husband, Rex Woodard, a devoted Four Seasons fan and Texas lawyer, wrote the book after discussing it with DeVito. Woodard, who finished the book in 1990, died the following year.
While attempting to get the book published in the wake of the success of “Jersey Boys,” Corbello discovered that DeVito obtained a copyright registration for the book. Corbello then added her husband as a co-owner to the book’s copyright registration.
The judge ruled that because the book is biographical in nature, “its ‘heart’ consists of unprotected facts.”
Woodard’s writing style, he wrote, isn’t the heart of the book.
“Here the interest of a reader of the work would be in the facts revealed by DeVito, not in Woodard’s writing skills,” Jones wrote. “That is not to say that Woodard was not a good (or even excellent) writer, but there is no evidence that there is any market for his writing in and of itself. He was not a known author.
“The ‘heart’ of the work—that aspect of the work likely to attract buyers—was the unprotected historical information conveyed by DeVito.”
The judge also focused on the musical’s transformative or new and creative use of the material and the play’s purpose, which he said is significant when considering fair use.
“The play takes on a different purpose from the work when the script (most of which was not taken from the work) is incorporated into musical performances using material in which plaintiff has no copyright,” he wrote.
The primary purpose of the play is to entertain, he wrote, while the book’s primary purpose is to inform.
“A finding of no fair use, where such a tiny part of the creative elements of a biographical work with little to no market value were copied, and where the use was significantly transformative, would hinder rather than further the purpose of copyright,” according to the ruling.
Furthermore, the judge said the book’s potential market or value strongly favors a finding of fair use. “If anything, the play has increased the value” of the book, he wrote.
David Korzenik, a lead attorney for the defendants, called the fair-use ruling correct and sound, one that he is confident will stand up if appealed.
“I think he (the judge) recognized the jury was off base, and the verdict couldn’t really be sustained,” Korzenik told Courthouse News.
Gregory Guillot, an attorney for the plaintiff, could not be reached immediately for comment.
“Jersey Boys,” which debuted on Broadway in 2005 and depicts the Four Seasons’ rise to fame, became a smash hit and won four Tony awards, including Best Musical. The Four Seasons, featuring lead singer Frankie Valli, had several hit songs in the 1960s, including “Big Girls Don’t Cry,” “Dawn,” and “Rag Doll.”
During the copyright trial, the judge dismissed Valli and Bob Gaudio, another member of the Four Seasons, as defendants, ruling that the evidence showed that they didn’t even know about the unpublished autobiography of DeVito until their depositions.
The plaintiff also sued DeVito, but settled with him before the trial.
The trial featured 12 days of testimony, a number of exhibits, including emails exchanged by the key defendants, and 33 jury instructions.
Attorneys for the plaintiff argued that the “Jersey Boys” writers were struggling to come up with a script until DeVito gave one of them a copy of the unpublished book—which one of the lawyers called a “eureka” moment. Another attorney for the plaintiff told the jury that the writers mined the book, lifting key story lines and pieces of dialogue, to make the play more interesting.
Meanwhile, an attorney for the defendants argued that most of the similarities between the book and the musical cited by the plaintiff were single words or common phrases that aren’t close to being original creative expressions protected by copyright. He also told the jury that historical events and their interpretations can’t be protected outside of the particular expressive words to relate them.