The definition of a “ghostwriter” is an author who writes a book credited to another person, but perhaps there’s another meaning to be gleaned from a ruling out on Tuesday from the 9th U.S. Circuit Court of Appeals.
The dispute concerns the mega-successful stage musical Jersey Boys, which covers the careers of the singers in The Four Seasons.
In the late 1980s, Thomas DeVito, one of the original members in the band, contracted Rex Woodard to ghostwrite his autobiography. Woodard died, the book was never published, and around the turn of the century DeVito and bandmate Nicholas Macioci granted the exclusive right to their other bandmates Frankie Valli and Bob Gaudio to use aspect of their lives to develop a stage performance about The Four Seasons.
Shortly before Jersey Boys premiered on Broadway in 2005 to critical and popular acclaim, Woodard’s widow, Donna Corbello, renewed her effort to publish the DeVito autobiography, figuring that a musical might rekindle interest in the band. She was told by DeVito it was “not saleable,” and after digging through and amending copyright records, she filed suit against the producers of Jersey Boys. She claimed it was a “derivative work” of the autobiography and that she deserved to share in the profits.
This led to an examination of the 1999 contract where DeVito granted right to use and incorporate “materials” for theatrical productions. As defined in the agreement, “materials” included “biographies.” Did this mean that DeVito was also transferring his copyright ownership interest in the unpublished autobiography in return for money?
A district court judge didn’t think so, reasoning that DeVito was merely granting a “selectively exclusive license” to use the work.
On Tuesday, the 9th Circuit reversed the judgment, running through dictionary definitions of “biographies” to find the meaning as a history of a person’s life. “As an account of DeVito’s life that has been reduced to writing, [Woodard’s] Work, on its face, qualifies under these straightforward definitions as a ‘biography.’ “
“DeVito cannot plausibly claim to have retained his privilege as a copyright co-owner to create derivative theatrical works of any biographical manuscript he owns, yet surrendered exclusively to others his generic ‘life story,’ along with his name and likeness, to create a play,” states the majority opinion from 9th Circuit judge Diarmuid O’Scannlain. “Relinquishing one’s right to exploit creatively his or her ‘life story,’ while at the same time retaining a corresponding right over one’s written biography, would be a self-defeating endeavor.”
Stated another way, this means DeVito made an exclusive deal with his ghostwriter and then made another deal covering the same rights with producers of Jersey Boys.
Of course, since co-owners of a copyright are allowed to make licensing deals with third parties so long as they account for profits to one another, DeVito was able to make his deal with Valli and Gaudio. But here’s the rub: The ’99 agreement apparently had a reversionary clause that triggered upon not getting producers on board Jersey Boys in a timely fashion. In such event, Valli and Gaudio would lose rights to DeVito’s life story. Whether or not Jersey Boys had the right to use the Woodard work is in dispute. The written agreements came late, but the president of the production company also testified that the parties had reached an oral agreement in time.
The 9th Circuit thinks this is a triable question that precludes summary judgment. And so, the ruling sets up a remand back to the trial court to determine whether Jersey Boys is a copyright infringement. The ghost of dead author who was never going to get published credit for his contribution suddenly looms over the production, now in its 10th year on Broadway.