Jersey Boys Don’t Cry: No Copyright Protection for Facts “Based on a True Story”
The US Court of Appeals for the Ninth Circuit affirmed a district court’s grant of judgment as a matter of law finding that the musical Jersey Boys did not infringe a copyright held in an autobiography of band member Tommy DeVito. Donna Corbello v. Frankie Valli, et al., Case No. 17-16337 (9th Cir. Sept. 8, 2020) (Berzon, J.).
In the 1990s, Rex Woodard ghostwrote an autobiography of Tommy DeVito, one of the original members of the 1950s quartet the Four Seasons. Woodard and DeVito agreed to split the profits equally. However, shortly after finishing the book, and before finding a publisher, Woodard died. Donna Corbello, Woodard’s widow, became the successor-in-interest to the book, and she continued the search for a publisher. Almost 15 years later, Corbello still had not published the book.
DeVito’s autobiography reads as a straightforward historical account of the Four Seasons. At the beginning of the book, DeVito, as the narrator, describes his autobiography as a “complete and truthful chronicle of the Four Seasons,” and he promises not to let “bitterness taint the true story.” Corbello also sent letters to potential publishers emphasizing that the book provided a “behind-the-scenes” look at the Four Seasons. In all accounts, the book is a non-fiction, historical chronicle of events of the Four Seasons.
In 2005, the musical Jersey Boys debuted on Broadway. Jersey Boys also depicts the history of the Four Seasons from its origins in New Jersey to its induction into the Rock and Roll Hall of Fame in 1990. DeVito admitted to working with people involved in developing Jersey Boys and sharing the book with the individuals researching the history of the band.
In 2007, Corbello sued DeVito and 14 defendants, including the band members and the writers, directors and producers of Jersey Boys. The complaint included 20 causes of action, including various forms of copyright infringement. The district court granted summary judgment in favor of the defendants on most of the claims. Corbello appealed. The Ninth Circuit reversed the district court’s grant of summary judgment in favor of defendants, vacated its assessment of costs against Corbello, and remanded for further proceedings.
On remand, the case proceeded to a jury trial where the jury found that the musical infringed the book and that use of the book was not fair use. After the verdict, the district court granted the defendant’s motion for judgment as a matter of law, concluding that any infringement was fair use. Corbello appealed.
On appeal, the central disagreements were whether the musical was substantially similar to the book and whether the defendants copied any protectable portions of the book. The Ninth Circuit analyzed the similarities under the extrinsic test for substantial similarity. The appellate court found that each of the similarities failed because they involved only non-protectable elements of the book. Those non-protectable elements included DeVito depicting himself in the musical (a character based on a historical figure is not protected); Bob Gaudio arriving late to rehearsal, excited about a new song he just wrote; “Sherry” (historical facts are not protected); and Gaudio comparing the band to the Beatles by saying “we weren’t a social movement” (an unprotectable common phrase describing an idea). The Court stressed that copyright law protects authors’ creative expression, not ideas, facts, common phrases, scènes-è-faire (situations and incidents that flow or naturally form a basic plot premise) writing style or presentation. The Court found that all of the similarities failed the extrinsic test because they involved elements of the work held out as facts, which are not protectable.
Corbello argued that some parts of the book were actually fictional and thus entitled to full copyright protection. The Ninth Circuit unleashed the “asserted truth” doctrine (also known as copyright estoppel), which provides that elements of a work presented as facts are treated as facts, and a copyright owner cannot later claim in litigation that aspects of a work are fictional to gain copyright protection.
Corbello next argued that the asserted truths doctrine could not apply in this case because the book was never published. She argued that only representations of truth made to the public trigger the doctrine and thus there was no representation because the book was never published. The Ninth Circuit clarified that representations are examined regardless of whether they are made to only a few readers, future readers or the public. In this case, the Court found that representations made to potential publishers, readers of the unpublished manuscript and potential future readers, if the book was published, were sufficient to trigger the doctrine. Since the work was expressly and repeatedly held out as a factual account, the Court would not permit averments that truth was fiction.