The creators of the hit Broadway musical Jersey Boys have been found liable for copyright infringement by a Nevada Federal Court jury. Jersey Boys tells the story of the formation, success and break-up of the world famous 1960s rock’n roll group The Four Seasons. The director and writers were held to have copied substantial portions of an unpublished biography without permission when writing the script for the musical. The Plaintiff claimed infringement in multiple jurisdictions, including the US, Canada, UK and Australia. Smart & Biggar partner, François Guay, provided an expert report on Canadian copyright law on behalf of the successful Plaintiff.
In 1981, Rex Woodward, a Texas lawyer and rock n’ roll journalist, wrote a major article about The Four Seasons, his favorite musical group. The band members were impressed and provided several interviews to Mr. Woodward for a follow-up article. In 1988, Tommy DeVito, a founding member of The Four Seasons, approached Mr. Woodward to write his biography detailing the group’s unknown past including time spent in prison. Mr. DeVito had only an eighth grade education and did not feel that he could tell the story on his own. The two agreed in writing to be listed as co-authors and share the profits.
The manuscript was completed in January 1991, but Mr. Woodward died a few months later of lung cancer at the age of 41. A book was never published and Mr. Woodward’s widow inherited her husband’s copyright.
The musical Jersey Boys launched in 2005 and went on to win four Tony awards in 2006, including Best Musical. Mr. Woodward’s widow had been trying for years to get her husband’s biography of Tommy DeVito published and saw the musical as an opportunity to finally achieve her husband’s dream. She hired lawyers to assist her and in the process found out that Mr. DeVito had registered the copyright in the work in his name alone shortly after receiving the original manuscript, without naming Mr. Woodward as co-author. In addition, Mr. DeVito had provided a copy of the work to one of the writers of Jersey Boys with instructions that the copy of the work be returned, not copied or circulated and used only for a limited background purpose.
One of the many facts presented to the jury was that the director of Jersey Boys noted in a 2007 interview for a book about The Four Seasons that DeVito’s manuscript “was just so delicious” and that the writers of the musical “had a couple of sequences in their treatment that were clearly inspired by this autobiography.”
The jury, after more than 13 hours of deliberations, decided that Jersey Boys infringed the Plaintiff’s copyright. While the jury was not asked to specify which portions were copied, the judge laid out a number of similarities, including dialogue, characterization and descriptions of scenes that the jury was instructed to consider. The jury further held that ten percent of the musical’s success was attributable to the infringement.
While the jury has now found infringement, damages remain to be assessed in a second trial. Jersey Boys has run on Broadway for more than 10 years, has enjoyed two North American tours, and productions have taken place in London, Las Vegas, Chicago, Toronto, Melbourne and elsewhere. Its global gross revenues are reported to be over $2 billion. The Plaintiff is claiming damages not just in the US, but for performances in Canada, the UK and Australia. In this regard, a US jury may award damages for copyright infringement in other jurisdictions, provided the foreign copyright law is proven through expert evidence, such as the expert report of François Guay submitted by the Plaintiff with respect to Canadian copyright law.
This case provides an important reminder of the global application of copyright and the importance of obtaining proper licenses when borrowing material from another copyrighted work.
The decision is subject to a possible appeal by the Defendants. If the decision stands, the Jersey Boys musical may end up where certain members of The Four Seasons began … on the wrong side of the law.