‘Big Litigants Don’t Cry’: Ninth Circuit Finds That Musical About Four Seasons Used Only Unprotected Facts

Written by Timothy M. Carter

On September 8, 2020 in Corbello v. Valli, the Ninth Circuit reaffirmed the principle that copyright law does not protect facts and that authors who characterize their statements as fact are estopped from claiming that the statements were actually fiction.  974 F.3d 965 (9th Cir. 2020).  The Court’s opinion reaffirms basic principles that have not recently come up in Ninth Circuit cases.

In the late 1980s, Rex Woodard, a longtime fan of the iconic musical group the Four Seasons, ghost wrote an autobiography (the “Book”) of founding member Tommy DeVito.  Woodard and DeVito agreed to share credit for the Book as co-authors and split all profits from the Book equally.  After Woodard died, his successors, including plaintiff Corbello, unsuccessfully sought a publisher for the Book.  Meanwhile, DeVito registered the Book with the U.S. Copyright Office under his name alone and—despite never publishing the work—subsequently provided a copy of the Book to the remaining two Four Seasons band members, Frankie Valli and Robert Gaudio, to use and adapt in developing the musical Jersey Boys (the “Musical”).

After learning that DeVito had registered the copyright and given writers of the Musical access to the Book, Corbello sued DeVito, Valli, Gaudio and numerous other defendants involved in the creation of Jersey Boys for copyright infringement and other legal claims.  After a fifteen-day trial, the jury found for Corbello, determining that the Musical infringed the Book.  However, the district court overturned that verdict, granting judgment as a matter of law on the grounds that much of the alleged infringement related to unprotectable elements of the Book and that to the extent the Musical infringed on any protected elements, defendants’ use was fair use under section 107 of the Copyright Act.

On appeal, the question was whether the Musical infringed any protectable elements of the Book.  The Ninth Circuit affirmed the judgment in favor of defendants based on “the unremarkable [legal] proposition” that “facts, in and of themselves, may not form the basis for a copyright claim” and that “[i]t is thus a feature of copyright law, not a bug or anomaly, that an author who deals in fact rather than fiction receives incomplete copyright protection for the results of his labor.”  Thus, “while books generally contain [an] author’s creative expression, [which is] protectable by copyright, a nonfiction biography like the work [here] is necessarily structured around historical facts and events, not themselves copyrightable.” 

Under this guiding principle, the Ninth Circuit reviewed each of the alleged similarities between the Book and the Musical—depictions of various events in the lives of the band members—and determined that each involved non-protectable historical facts, common phrases and scenes-a-faire (i.e., scenes that are “indispensable, or at least standard, in the treatment of a given idea,” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994) (internal alteration and quotation marks omitted)), or elements that were treated as facts in the Book and are thus unprotected by copyright.  Thus, finding that neither Valli nor the other defendants violated Corbello’s copyright by depicting in the Musical events in their own lives that are also documented in the Book, the Ninth Circuit held that there could be no copyright infringement because the Musical did not copy any protected elements of the Book.

The Ninth Circuit also confirmed that authors of nonfiction works and their estates cannot later claim that elements of their work were actually fictional in order to extend the scope of copyright protection during litigation.  Under the doctrine of copyright estoppel—which the Ninth Circuit renamed as the asserted truths doctrine—“elements of a work presented as fact are treated as fact, even if the party claiming infringement contends that the elements are actually fictional.” In other words, if the author claims a written work is historically accurate, he or she “cannot later claim, in litigation, that aspects of the work were actually made up and so are entitled to full copyright protection.”

Because the Ninth Circuit affirmed the district court’s decision solely on the determination that the Musical did not infringe the Book, it did not review the district court’s fair use determination.

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