Ninth Circuit affirms district court ruling that Broadway musical Jersey Boys did not infringe on plaintiff’s copyright of Tommy DeVito’s biography, holding musical depicts historical facts that are not protectable by copyright law and author who holds work out as nonfiction cannot later claim work was fictional for purposes of copyright protection.
Rex Woodard, a longtime fan of the 1960s musical group the Four Seasons, wrote a biography of band founding member Tommy DeVito in 1988, based on various interviews and discussions he had with DeVito over several years. Woodard and DeVito agreed that they would share credit for the biography as co-authors and split all proceeds from the work equally. Woodard and DeVito attempted to publish and exploit their work but were unable to do so before Woodard’s death in 1991. After Woodard’s death, DeVito successfully registered the biography with the U.S. Copyright Office under his name alone and later granted an exclusive, irrevocable, perpetual, worldwide and assignable license to the remaining two Four Seasons band members, Frankie Valli and Robert Gaudio, to freely use and adapt the biography to create the musical Jersey Boys.
Woodard’s widow and successor to his interest in the book, plaintiff Donna Corbello, eventually learned that DeVito had registered the copyright in his name alone and had granted others a license to exploit the biography and earned 20% of all royalties received from it. In 2007, Corbello filed suit against DeVito, Valli, Gaudio and 11 other defendants involved in the creation of Jersey Boys for copyright infringement and other legal claims. Since then, the action has gone through numerous stages of litigation limiting the causes of action and defendants (read our previous summaries of court decisions here and here). Corbello eventually secured recognition of Woodard as a co-author of the copyrighted work without the cooperation of DeVito.
After a 15-day trial, the jury found for Corbello, determining that the musical infringed the book, but the district court overturned that verdict, granting judgment as a matter of law on the grounds that much of the alleged infringement related to unprotectable elements of the book and that to the extent the musical infringed on any protected elements, it was fair use. (Read our summary of the district court’s decision here.)
The question before the Ninth Circuit on appeal was whether the Jersey Boys musical infringed any protectable elements of the DeVito biography. The court affirmed the district court’s decision solely on the determination that the musical did not infringe on the biography, and therefore it did not review the district court’s fair use determination.
The appellate court’s ruling was based on the uncontroverted legal principle that “facts, in and of themselves, may not form the basis for a copyright claim” and that “[i]t is thus a feature of copyright law, not a bug or anomaly, that an author who deals in fact rather than fiction receives incomplete copyright protection for the results of his labor.” Using this guiding principle, the Ninth Circuit reviewed six alleged similarities between the biography and the musical — depictions of various events in the lives of the band members — and determined that each involved non-protectable, historical elements of the DeVito biography.
The Ninth Circuit also confirmed that authors of nonfiction works and their estates cannot later claim that elements of their work were actually fictional in order to extend the scope of copyright protection during litigation. This doctrine had previously been referred to in jurisprudence as “copyright estoppel,” but the Ninth Circuit elected to rename it “‘the asserted truths’ doctrine because it is the author’s assertions within and concerning the work that the account contained in the book is truthful that trigger its application.”
Defendant argued that various parts of the biography were embellishments rather than accurate historical representations and should therefore be treated as fiction and that the fact that the biography was never officially published precluded application of the asserted truths doctrine. The court rejected this analysis, holding that publication was not dispositive; the biography held itself out to its intended audience as historically accurate. The court noted that copyright law protects “the creative labor of authors” rather than authors’ post-completion representation about the truthfulness of their work.