RENO, Nev. (CN) – A jury found Monday that the creators of the hit Broadway musical “Jersey Boys” infringed the copyright of an unpublished book about the Four Seasons member Tommy DeVito in developing the play’s script, which depicts the group’s rise to musical fame.
The jury, assembled in the courtroom of U.S. District Judge Robert C. Jones, rendered its unanimous verdict against “Jersey Boys” writers Eric Elice and Marshall Brickman, director Des McAnuff and primary producer Michael David, all of whom spent considerable time on the witness stand.
After deliberating for about 13 hours, jurors also concluded that the other five defendants – corporate entities involved in the musical – infringed the copyright.
In a separate verdict, the jury of six men and three women found that 10 percent of the success of “Jersey Boys” is attributable to the infringement. Jurors rejected defenses of an implied license to use the unpublished book and fair use of copyrighted material.
“Jersey Boys” became a smash hit after debuting on Broadway in 2005, capturing four 2006 Tony awards, including Best Musical. The play depicts the story of the Four Seasons, who had several hit songs in the 1960s.
Judge Jones will consider post-trial motions as well as an accounting for damages in the future.
He dismissed Four Seasons members Frankie Valli and Bob Gaudio as defendants after the plaintiff’s attorneys presented their case in chief. He ruled that the evidence showed that neither of them even knew about DeVito’s unpublished autobiography until their depositions in the case, which has dragged on for nearly nine years.
The plaintiff also sued DeVito but settled with him before trial. Details of the settlement have not been disclosed publicly.
David Korzenik, the defendants’ lead attorney during the trial, said in an interview outside the courtroom that the defendants will appeal, citing what he called a number of serious errors.
“Tremendous inconsistencies in rulings” by the judge and “tremendous errors in (jury) instructions,” which he described as confusing, will be significant issues on appeal, he said.
The case, Korzenik said, should have been tossed before going to trial.
“If this case had been litigated elsewhere in courts familiar with these kinds of claims, it would have either been gone by a dismissal motion at the threshold or summary judgment surely,” he said.
“This case is probably the only case involving a literary historical work that has ever gone to a jury trial in this country,” he said, because of the “thin” copyright protection for such works.
Other than saying they were pleased, plaintiff Donna Corbello’s lead attorneys Robert McKirgan and Gregory Guillot refused to comment after the verdict was announced because the litigation is not over.
Jurors listened to 12 days of testimony in the trial, which began Oct. 31. The trial also featured numerous exhibits, including emails exchanged by key defendants.
Corbello claimed the defendants unlawfully used the unpublished autobiography of DeVito – the copyrighted “work” – in creating the “Jersey Boys” script. Corbello’s late husband, Rex Woodard, a Texas lawyer and Four Seasons fan, wrote the book after discussing it with DeVito. Woodard finished the book in 1990 and died the following year.
DeVito obtained a copyright registration for the book, which Corbello discovered while trying to get the book published in the wake of the “Jersey Boys” success. Corbello subsequently had her husband added as a co-owner to the book’s copyright registration and sued in 2007.
DeVito entered into a 1999 agreement with Valli and Gaudio to explore a musical play based on the Four Seasons, but the agreement lapsed in late 2004. Lawyers argued over whether an implied license to use the book continued after the agreement expired.
Jurors began deliberations on Nov. 21. They received 33 instructions, including a number on the details of copyright law that covered direct copying, the defenses of an implied license and fair use, protected original expressions versus ideas, commonly used words or historical facts, derivative works, substantial similarities between the book and the musical, and “thin” protection.
Corbello’s lawyers tried to show that the “Jersey Boys” writers were struggling to create a script and were under pressure by the director to come up with a new direction until DeVito gave one of the writers a copy of the unpublished book, which one of the lawyers called a “eureka” moment.
They argued that key story lines and pieces of dialogue in the musical were lifted from the book and said draft scripts, outlines and one of the writer’s notecards contained copied material.
“Jersey Boys” writers “mined the work (book) to make the play more entertaining,” McKirgan told the jury in his closing argument.
Korzenik argued on behalf of the defendants that 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.
Other similarities are vague, he said, while also reminding the jury that historical events and their interpretations, outside of the particular expressive words to relate them, can’t be protected by copyright.
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