Judge Vacates Jersey Boys Copyright Infringement Verdict

Last year, we covered the lawsuit surrounding the Broadway musical Jersey Boys, which resulted in a jury finding that its producers copied an unpublished autobiography by Tommy DeVito; DeVito was a founding member of the group the musical is about, The Four Seasons. On June 14^th, U.S. District Court Judge Robert Jones vacated the verdict, finding that the musical’s use of the autobiography was fair use.

The district court examined whether the inclusion of “biographies” in the agreement meant DeVito had transferred his copyright interest in the unpublished autobiography to them. It found that DeVito had granted Valli and Gaudio a “selectively exclusive license” to use the work and that it was not a transfer of copyright interest. The court granted summary judgment on this issue, as well as the infringement claims, finding that Valli and Gaudio had a valid license. On appeal, the Ninth Circuit found that the agreement was a transfer of copyright interest, and Corbello was entitled to profits. Also, the transferred copyright interest would’ve ordinarily been a defense against the infringement claims, but the 1999 agreement included a two-year reversionary clause for the rights, if no separate contractual agreement was reached with outside producers. The Ninth Circuit determined that summary judgment should not have been granted because a genuine issue of material fact existed on whether the copyright interest terminated during delays that occurred during the making of Jersey Boys. The Ninth Circuit ultimately vacated the judgment of the district court and remanded the case for trial. Following a fifteen-day trial, a jury found the defendants liable for copyright infringement.

Here Judge Jones reviewed the four factors of fair use:

1. Effect on the Potential Market for or Value of the Copyrighted Work: The court found that this factor favored the defendants and fair use because there was no market for the autobiography until the musical became a success. Corbello had been unable to find a publisher who was interested in the manuscript prior.
2. Purpose and Character of the Use: The court found that because the musical is a commercial work, this leaned against fair use. However, it also found the musical to be transformative because it took on a different purpose from the autobiography; the book was meant to inform and the musical was meant to be entertainment. The transformative value ultimately outweighed the commercial nature, making it favor fair use.
3. Nature of the Copyrighted Work: The court considered both that the biographical nature of the work favored fair use, but the fact that the autobiography was unpublished went against fair use. The court found fair use here, though, because it agreed with the defendants that “the publication of (small parts of) the Work did not diminish its value by preempting Plaintiff’s right to control the first public appearance of the Work. The reason the Work was not yet published was because it was simply not publishable despite years of effort.”
4. Substantiality Used in Relation to the Copyrighted Work as a Whole: The court found that the amount of protectable, creative material potentially copied in relation to the whole work was less than 1%. “In summary, at the most, the jury could have found about 145 creative words to have been copied from the Work into the Play. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work.” Thus, this factor favored a finding of fair use.