Judge Overturns Jury's Verdict That 'Jersey Boys' Is a Copyright Infringement

Jersey Boys - Mark Ballas - Getty - H - 2016
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The story of The Four Seasons, the 1960s pop group with mob connections and a long string of hits, was incredible enough to power Jersey Boys. A lawsuit over the creation of that mega-successful theatrical production is astonishing in its own right, with a new chapter authored on Wednesday when a Nevada federal judge decided to vacate a jury's verdict of copyright infringement with a finding that the musical was a fair use of copyrighted material.

The lawsuit was brought by Donna Corbello, the widow of Rex Woodard, who assisted Four Seasons member Tommy DeVito in an autobiography. The book was based on interviews, newspaper articles, Freedom of Information Act requests and more, but was never published in Woodard's lifetime. In the years following Woodard's 1991 death from lung cancer, Corbello and Woodard's sister continued to seek publication. In 2005, DeVito agreed to help. That was the same year that Jersey Boys premiered on Broadway, later to win Tony Awards and be adapted into a film by Clint Eastwood.

DeVito had told Corbello the work was "not saleable," but upon the success of Jersey Boys and the discovery that DeVito had registered a literary work with the Copyright Office in his own name, Corbello filed suit against the producers of Jersey Boys and alleged the musical was a "derivative work" of the autobiography and that she deserved to share in the profits, estimated at $150 million per year.

The 2007 suit led to all sorts of fireworks, including an examination of a 1999 contract between DeVito and Jersey Boys producers that granted a right to use and incorporate "materials," including "biographies." Although DeVito may have properly conveyed the right to use his autobiography, a reversionary clause may have canceled that. This was all fussed over by the district judge, who initially rejected Corbello's lawsuit, and the 9th Circuit Court of Appeals, which revived it and paved the way for trial.

Almost a decade after the lawsuit was filed, the case finally made its way to trial last November, and after 15 days of testimony, Frankie Valli and Bob Gaudio, two of The Four Seasons, were cleared from liability by the judge who agreed there wasn't enough evidence to suggest they did anything wrong and probably had license to use works thanks to the 1999 agreement.

However, the rest of the case went to a jury, which came back with the verdict that DeVito (who settled with Corbello) did not grant producers an implied nonexclusive license to use the work, that Jersey Boys infringed the autiobiography, that 10 percent of the success of the musical was attributable to infringement and that the remaining defendants — producer Michael David, writers Eric Elice and Marshall Brickman, director Des McAnuff and various production companies — were liable as well.

Thereafter, they challenged the verdict.

On Wednesday, U.S. District Court judge Robert Jones gives defendants relief from what would have been millions in damages thanks to the conclusion that Woodard's biography was fairly used. In coming to his order (read in full here), the judge runs through the four factors that inform a fair use analysis.

On the effect of the use upon the potential market, which Jones calls the most important factor, the judge notes, "The evidence at trial indicated that before the Play debuted, the Work had no market value. ... To the extent the Work may be profitable today, it is almost certainly only because of the Play ... consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work."

In getting those percentages, Jones also examines the amount and substantiality of the portions taken. The judge discounts unprotectable material like bare recitations of historical events like the group's induction into the Rock and Roll Hall of Fame. A line about the "social movement" of The Beatles, some dialogue about the "Walk Like a Man" song and other creative expression copied are then tallied up.

"In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events," writes the judge. "Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work."

Jones has some thoughts about the purpose and character of the use.

On one hand, the judge writes that commercial use generally weighs against a finding of fair use. But later in his opinion, he turns to whether Jersey Boys was transformative.

"The purpose of the Work is primarily to inform," writes Jones, referring to Woodard's book. "Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative 'four seasons' of the history of the band. And in doing so, the Play adds creative expression beyond mere republication. The transformative nature of the use in this case is significant."

Putting it all together, Jones decides in favor of the defendants, which marks the third major judicial decision in as many weeks on the topic of fair use after a New York judge gave Drake a win in a sampling case and a California judge rendered a decision that was fairly favorable to a comic publisher who created a mash-up of Dr. Seuss and Star Trek

Corbello's lawsuit could be headed back to the 9th Circuit which, coincidentally in a separate case, ruled back in 2013 that the use of a clip of the Ed Sullivan Show in Jersey Boys was fair use. That latter decision has been well-cited in copyright disputes, and it appears likely that the federal appeals court will now get a third opportunity to think about the story of The Four Seasons.