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There haven’t been many spectacles like the one coming soon to a Nevada federal courtroom. After a judge on Wednesday partially denied a summary judgment motion, the stage is now set for a jury trial where Frankie Valli and Bob Gaudio, two singers in The Four Seasons, will defend themselves against allegations that the musical Jersey Boys is a copyright infringement.
One might legitimately ask: How it is possible for any artist to be accused of stealing his or her own life story? This strange case provides the answer.
It begins in the 1980s when a journalist named Rex Woodard became friendly with Four Seasons member Tommy DeVito in the course of research for articles about the early days of the band. Later, after DeVito explained that contrary to the band’s wholesome image, the group was engaged in criminal enterprises and had “underworld contacts,” Woodard signed up to write an authorized biography with credit and an equal share of the profits. Woodard used interviews, old news articles, Freedom of Information Act requests filed with law enforcement agencies and more to write a book told from DeVito’s perspective. The book was never published, and after being diagnosed with lung cancer, Woodard died in 1991 at the age of 41.
Flash forward to 2006, when Valli and Gaudio developed a stage musical about The Four Seasons titled Jersey Boys. It became a smash, earned four Tony Awards, was developed into a Clint Eastwood film and now plays in several countries.
Meanwhile, Woodard’s widow, Donna Corbello, began checking copyright records and filed suit against the producers of Jersey Boys as well as Valli and Gaudio for infringing her late husband’s work.
It was later discovered that the writers of Jersey Boys and several of its actors had access to Woodard’s work, and during Valli’s divorce proceedings in 2008, it was learned that DeVito had granted Valli and Gaudio a license in 1999 to freely use and adapt certain “materials,” including his “biographies,” for the making of Jersey Boys.
In Corbello’s lawsuit, the judge initially ruled that the license didn’t cover Woodard’s work, but in February, the 9th Circuit Court of Appeals reversed this decision. Normally, this would mean that Valli and Gaudio had permission to adapt the book and it was DeVito’s responsibility to share proceeds with Woodard’s heir, but there was a further wrinkle: The 1999 license deal between DeVito and Valli had a reversionary clause that triggered upon not getting producers on board 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 the deal work to produce the Broadway musical and determine whether the reversionary clause was ever triggered.
If Valli and Gaudio lost the right to use the Woodard book, the next question for a jury will be to determine whether Jersey Boys constitutes a copyright infringement of the Woodard book. Although Valli and Gaudio are now facing the prospect of being ruled infringers of their own life story, they face certain advantages.
That’s because on Wednesday, U.S. District Judge Robert Jones issued a remarkable opinion that addresses whether Woodard’s book is subject to “thick” or “thin” copyright protection.
As the judge writes in his opinion, “thick protection is the norm, but when there are very few articulable, concrete similarities based on protected aspects of a work and a limited number of ways in which the underlying ideas could be expressed differently, or where the only protectable aspect of a work is the ‘unique selection and arrangement’ of otherwise unprotectable elements, a work is entitled only to ‘thin’ protection, where ‘virtually identical copying’ is required to support a finding of infringement.”
Corbello will have to prove “virtually identical copying” because the judge notes that historical works are entitled to lesser protection than works of fiction. Facts are in the public domain. What happened to members of The Four Seasons are historical record. Even interpretations of these events are uncopyrightable. “After all, every relation of a historical fact beyond direct observation is tainted to some degree by some person’s interpretation, so distinguishing between historical facts and ‘interpretations’ of those facts in the context of copyright would destroy the rule that historical facts are unprotected,” writes the judge.
Jones says this doesn’t mean that Woodard’s work is unprotected. There’s still the overall expression (like how the recounting was stylized). And the possibility that a jury might find direct copying. One of the plaintiff’s experts opines that at least 30 percent of Jersey Boys is attributable to Woodard’s book. The judge concludes that a reasonable jury could take this, and evidence of meetings where Woodard’s book was accessed and annotated for development into Jersey Boys, and find direct copying.
And so, in a case that’s lasted eight years and is currently scheduled to go to trial in May 2016, a jury will get the chance to decide whether a pair of artists should be punished for ripping off a story of their own lives.
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