By Thomas Long, J.D.
In a copyright infringement suit over the Broadway musical "Jersey Boys"—based on the band The Four Seasons—unrebutted evidence showed that former Four Seasons singers Frankie Valli and Bob Gaudio were unaware that portions of an unpublished autobiography of Thomas DeVito, a founding Four Seasons member, had been copied by the writers of the musical’s libretto. The federal district court in Las Vegas granted Valli and Gaudio judgment as a matter of law, ruling that they could not be liable for infringement. In addition, the defendants who actually copied the plaintiff’s work—writers Marshall Brickman and Eric Elice and director Des McAnuff—were not subject to enhanced damages for willful infringement because they lacked knowledge that copying from the unpublished work was unlawful. The case will next proceed to a jury, which will determine the questions of infringement by the remaining defendants, as well as the defenses of implied license and fair use (Corbello v.DeVito, November 17, 2016, Jones, C.).
Works at issue. The suit was filed by Donna Corbello, the widow and heir of author Rex Woodard. In the 1980s, Woodard conducted a series of interviews with DeVito, Valli, and others, in connection with an autobiography of DeVito that eventually was ghostwritten by Woodard but was never published. Valli and Gaudio later allowed a production company to use The Four Seasons and the names, likenesses, and life stories of its band members for the creation of the musical "Jersey Boys," which had become a Broadway hit by late 2006. The writers and producers of "Jersey Boys" allegedly had access to the Work, and Woodard asserted that "Jersey Boys" was an unauthorized derivative work based on and infringing the Work. Woodard filed claims for copyright infringement in connection with productions of the musical in the United States, the United Kingdom, Canada, and Australia, and sought an accounting of profits.
Licensing agreement. In July 2008, it was revealed that, in 1999, DeVito had granted Valli and Gaudio an exclusive, irrevocable, perpetual, worldwide, assignable license ("the 1999 agreement") to freely use and adapt his life story for the purpose of creating a musical based on the "life and music" of The Four Seasons. The U.S. Court of Appeals for the Ninth Circuit held that DeVito had transferred his copyright interest in his autobiography, but that a reversionary clause in the 1999 Agreement might have terminated the ownership rights of Valli and Gaudio. Therefore, the Ninth Circuit decided, the defendants might have infringed Corbello’s copyrights in the work. The Ninth Circuit reversed the district court’s grant of summary judgment in favor of the defendants and remanded for trial.
Infringement—Valli and Gaudio. Trial was held. At the close of the plaintiff’s evidence, the defendants moved for judgment as a matter of law, which the court granted in part and denied in part. Unrebutted evidence at trial showed that Valli and Gaudio never saw the copyrighted work until their depositions in the case. Testimony indicated that Gaudio was aware that DeVito had employed a "ghostwriter" to help him write a book, and that book had been forwarded to co-defendants Marshall Brickman and Eric Elice, the writers of the "Jersey Boys" libretto. However, there was no evidence that Gaudio—much less Valli—was aware that Brickman or Elice copied from that book to create the script, or that Valli or Gaudio had the ability to exercise control over Brickman and Elice’s writing process. Without such knowledge, Valli and Gaudio could not be liable for infringement.
Willful infringement. In addition, there was no evidence presented at trial that any defendant knew of or recklessly disregarded the possibility that copying from the work infringed a copyright. DeVito’s failure to object to any portion of the "Jersey Boys" script that may have been copied from the work strongly implied a license, the court said, and obviated any claim that the defendants who actually copied from the work had reason to believe that any copying was wrongful. Therefore, these defendants could not be liable for willful infringement.
The case is No. 2:08-cv-00867-RCJ-PAL.
Attorneys: Gregory H. Guillot (Gregory H. Guillot, PC) for Donna Corbello. Booker T. Evans, Jr. (Ballard Spahr LLP) for Thomas Gaetano DeVito.
MainStory: TopStory Copyright NevadaNews
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