1709 Blog: for all the copyright community

Sunday, 4 October 2015

Jersey Boys case heads for a thin trial

According to The Hollywood Reporter, a judge has now partially denied a summary judgment motion in the trial in which The Four Seasons members Frankie Valli and Bob Gaudio must defend themselves against allegations that the Tony Award winning smash hot musical Jersey Boys infringes an author's copyright.

Rex Woodard was the co-author of a biography of Four Seasons member Thomas Gaetano DeVito, jointly created with the musician, and based on a series of interviews and discussions between the pair over a number of years which revealed  that the wholesome foursome had actually been engaged in "criminal enterprises" and had "underworld contacts".  The pair agreed to be co-authors and share in any profits. Woodard died of lung cancer in 1991 and subsequently DeVito registered the Work at the US Copyright Office, in his name alone. He subsequently granted defendants Frankie Valli and Robert Gaudio (also both Four Season’s members) an irrevocable, exclusive, perpetual, worldwide and assignable licence to freely use the Work and Gaudio and Valli further sub-licensed these rights, which allowed the Work to subsequently form the basis for the screenplay of the hugely successful ‘Jersey Boys’ musical. After the play was first staged in 2005, Woodward’s widow, Donna Corbello, learned of the link in 2007 and amended the US copyright registration in 2009 to include her late husband Woodard and it was revealed that the show's writers, along with several of its actors, had access to Woodard's original work and that DeVito had granted Valli and Gaudio, "a license to freely use and adapt certain 'materials,' including his 'biographies' for the making of the Broadway musical.

Corbello brought a claim in the District Court of Nevada against DeVito and the other defendants including Valli, Gaudio and the show’s producers and directors for copyright infringement. DeVito and the other defendants argued that the claim was barred by applicable statute of limitations and that foreign copyright claims could not apply to the claim. Whilst the court found that the action was not time barred (as Corbello only learned of the infringements on 2007) and the court also dismissed claims about a lack of personal jurisdiction, it agreed on the matter of foreign copyright claims and that only US copyright law could apply and in the case of the claim against Jersey Boys Record Limited concerning the release of a ‘Cast Album’ of sound recordings from the Broadway show the court found that this was not substantially similar to the Work to infringe. But most importantly the court said that whilst Woodward was co-author of the Work, DeVito’s assignment of rights to Valli and Gaudio and the onward licence to the show’s producers were valid as they pre-dated the plaintiff’s copyright claim and the court granted partial summary judgment in favour of all defendants save DeVito, meaning Corbello’s claim could proceed to trial, but was now solely against Woodward’s co-author DeVito.

In February this year the 9th Circuit Court of Appeals reversed this decision. Further complicating the manner was the fact that the 1999 license deal between DeVito and Valli had a reversionary clause that was triggered if producers were not on board with Jersey Boys soon enough. In such event, Valli and Gaudio would lose rights to DeVito's materials (including Woodard's book). And so, the coming trial will first look at that deal to produce the Broadway musical, to determine whether the reversionary clause was ever triggered. 

However U.S. District Judge Robert Jones has warned the plaintiff that if the trial can proceed, as the book and the musical are based on historical facts, Corbello will have to prove "virtually identical copying" because the judge notes that historical works are entitled to lesser protection than works of fiction - so called 'low authorship' or  'thin' copyright protection. Facts are in the public domain and what happened to members of The Four Seasons are historical record - suggesting that only Woodward's expression of these facts or his  'unique selection and arrangement' of otherwise unprotectable elements' would attract copyright protection.

The case is scheduled to go to trial in May 2016.


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