Ninth Circuit Sides With ‘Jersey Boys’ Writers in Copyright Battle

(CN) — The Ninth Circuit ruled Monday that “Jersey Boys,” the hit Broadway musical that depicts the history of the Four Seasons band, did not infringe the copyright of an unpublished autobiography of Tommy DeVito, an original member of the musical group featuring lead singer Frankie Valli.

A three-judge panel affirmed a federal judge’s judgment as a matter of law in favor of the defendants, the play’s creators, in a suit brought by Donna Corbello, whose late husband, Rex Woodard, a Texas lawyer and devoted Four Seasons fan, wrote the unpublished book, known legally as the “work.”

The lower court judge’s ruling overturned a unanimous jury verdict in Reno, Nevada. The jury found that 10% of the success of “Jersey Boys,” which debuted on Broadway in 2005 and received four Tony Awards, was attributable to infringement of the book. The jury was not asked to determine or award damages.

The panel’s opinion, written by U.S. Circuit Judge Marsha Berzon, focuses primarily on the principle that copyright does not protect historical facts.

“On close examination, each of the alleged similarities between the play and the work are based on historical facts, common phrases and scenes-a-faire…, or elements that were treated as facts in the work and are thus unprotected by copyright, even though now challenged as fictional,” Berzon, a Bill Clinton appointee, wrote.

Scenes-a-faire, according to a case cited by the opinion, refer to scenes that are indispensable, or at least standard, in the treatment of a given idea.

“Neither Valli nor the other defendants violated Corbello’s copyright by depicting in the play events in their own lives that are also documented in the work. Because the play did not copy any protected elements of the work, we conclude, there was no copyright infringement.”

The opinion also found that some of the 12 similarities between the play and the book that the jury considered did not amount to infringement under what some courts have referred to as the doctrine of copyright estoppel. The Ninth Circuit panel preferred to call the copyright rule the “asserted truths” doctrine because the author’s claims that the book’s account is truthful trigger the doctrine’s application.

Under the doctrine, an author who calls their book nonfiction cannot later legally claim that aspects of the book were actually made up and thus entitled to full copyright protection.

“Here, the text of the work explicitly represents its account as historically accurate, not historical fiction,” Berzon wrote for the panel. “In the work’s early pages, the DeVito narrator describes the work as the ‘complete and truthful chronicle of the Four Seasons.’ He promises not to allow ‘bitterness to taint the true story’ and notes his ‘candor.’”

U.S. Circuit Judges A. Wallace Tashima and William Fletcher, also Bill Clinton appointees, joined the opinion.

David Korzenik, a primary attorney for the defendants, said in an interview that the Ninth Circuit’s finding that facts presented as facts are not protected by copyright is certainly not new.

“It’s an intelligent back to basics of copyright law, and people sometimes need to be reminded of that,” he said of the opinion.

In her suit, filed in 2007, Corbello claimed the defendants used the unpublished autobiography in creating the “Jersey Boys” script. Her husband finished the book in 1991 and died the following year.

While trying to get the book published in the wake of the musical’s success, Corbello discovered that DeVito obtained a copyright registration for the book. Corbello then added her husband as a co-owner of the copyright registration.

DeVito gave one of the musical’s writers a copy of the book, which one of the plaintiff’s attorneys called a “eureka” moment.

The plaintiff also sued DeVito but settled with him before the trial.

During the trial, the judge dismissed Valli and Bob Guadio, another Four Seasons member, as defendants, ruling the evidence showed that neither of them even knew about the unpublished book until their depositions. The other defendants included the producer, writers and director of the play.

Plaintiff’s attorneys argued that the “Jersey Boys” writers mined the book to make the play more interesting.

On the other hand, defense attorneys argued that most of the similarities between the book and the play 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.

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