In 'Jersey Boys' Ruling, Appeals Court Adopts New Standard for Nonfiction

Jersey Boys on Broadway -he August Wilson Theatre 2016-Getty-- H 2017
Bruce Glikas/FilmMagic

On Tuesday, the 9th Circuit Court of Appeals affirmed a copyright win for producers of Jersey Boys. In doing so, the appellate judges wrote a new chapter of law about nonfiction works.

This latest opinion comes in a long-running case brought by Donna Corbello. In fact, the plaintiff originally filed her lawsuit all the way back in 2007, fresh off the Tony-winning success of Jersey Boys, which is about the iconic pop group The Four Seasons. After some early difficulty showing she had rights via contract, her case was previously revived by the 9th Circuit in 2015, and afterwards she convinced a jury that Jersey Boys had infringed her late husband's ghostwritten and unpublished autobiography of founding member Tommy DeVito. Unfortunately for Ms. Corbello, this 13-year-old case took another pivot as the trial judge then overturned the jury's verdictToday, a 9th Circuit panel led by Judge Marsha Berzon upholds the judge's conclusion that Jersey Boys producers deserve to prevail over claims, although it's not on the same fair use grounds as before.

First, though, some basics about copyright law.

Copyright protects original expression, not ideas, not standard genre tropes, and not facts about true-life events. But the Supreme Court has held that if facts are creatively selected and arranged, they too may enjoy at least some protection. Thus, biographies and journalism are entitled to copyrights too.

Typically, when a copyright claim is asserted over a work of nonfiction, the plaintiff will either try to convince the judge and jury that he or she made an original selection or arrangement or included something beyond facts within their work. Sound a little odd? Perhaps, but it happens. For example, three years ago, a music journalist admitted to having "embellished" his articles about Tupac Shakur to sue Lionsgate over All Eyez on Me

The Jersey Boys case became another instance of this phenomenon.

The 9th Circuit is now putting its proverbial foot down by adopting what some have referred to as the doctrine of copyright estoppel and what this panel of judges prefer to call an "asserted truths" doctrine.

Berzon explains: "It would hinder, not 'promote the progress of science and useful arts' to allow a copyright owner to spring an infringement suit on subsequent authors who 'built freely' on a work held out as factual, contending after the completion of the copyrighted work, and against the work's own averments, that the purported truths were actually fictions. Copyright protects the creative labor of authors; it does not protect authors' post-completion representations about the lack of veracity of their own avowedly truthful work."

In other words, no backtracking. If an author says it happened, they can't later say it didn't for purpose of maintaining a copyright suit. And it doesn't even matter if the work is published. Rejecting Corbello's arguments, Berzon adds that it's the representations made by a work — not its prior publication — which is essential. Those representations can be made "only to a few actual readers, to future intended readers, or, upon publication, to the general public."

The opinion then looks at six similarities between Jersey Boys and the DeVito autobiography and finds no copyright infringement because noted elements were held out as facts. Not even a "roman orgy" scene nor a fake murder in Frankie Valli's car is deemed protectable given how the work in other places conveyed a sense of historical accuracy.

Read the full opinion here.