A panel of the Ninth Circuit Court of Appeals recently affirmed the Nevada District Court’s ruling that the play Jersey Boys did not infringe plaintiff’s copyright in the autobiography of Tommy DeVito – a member of the Four Seasons – as the play did not copy any protectable aspects of the autobiography. See Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020).
The Tony Award-winning Jersey Boys musical tracks the history of the chart-topping quartet the Four Seasons. The play follows band members Frankie Valli, Bob Gaudio, Nick Massi, and Tommy DeVito from their meager beginnings singing under streetlights in New Jersey through their meteoric rise to stardom with songs such as “Walk Like a Man,” “Big Girls Don’t Cry,” and of course “Sherry.”
Jersey Boys, however, was not the first attempt to market this (ultimately) highly popular story. Long before the play’s 2005 debut on Broadway, bandmember Tommy DeVito had partnered with attorney Rex Woodward in 1988 to ghostwrite DeVito’s autobiography and to share equally in the profits. The book presented itself as an autobiography; the narrator described it as the “complete and truthful chronicle of the Four Seasons,” and it was represented to potential publishers as a behind-the-scenes factual look at the band.
Despite an attempt by DeVito to exclude Woodward from the copyright, Woodward’s widow – Corbello – was able to obtain a copyright on the book following her husband’s death. When Corbello subsequently discovered that DeVito had provided copies of the book to writers and producers of Jersey Boys during production of the play, she brought suit for copyright infringement. The district court granted judgment as a matter of law in favor of defendants, and Corbello appealed.
In order to qualify for copyright protection, a work must be created with some minimal degree of creativity. Although nonfiction works may entail originality, an author cannot copyright the facts they narrate, and thus authors dealing in fact rather than fiction often receive incomplete copyright protection of their works.
While it has long been recognized that historical facts and events alone cannot form the basis of a copyright claim, the Ninth Circuit expanded the realm of unprotectable “facts” in Corbello, adopting what the court dubbed the “asserted truths” doctrine.
After dismissing six alleged similarities between the autobiography and the play on grounds that the similarities were unprotectable fact, the Circuit Court analyzed six remaining similarities which, despite being presented as fact in the book, were now claimed by Corbello to be fiction. Specifically, the court analyzed: (1) DeVito’s introduction of Valli to the character Mary; (2) DeVito’s intervention in Valli’s arrest; (3) the “Roman Orgy” scene, depicting a record label party; (4) a “Fake Murder” alleged to have taken place in Valli’s car; and (5) and (6) dialogue surrounding the title and subject matter of the song “Walk Like a Man.”
Rejecting Corbello’s argument that these similarities represented protectable aspects of the book, the Circuit Court noted that one of the core concerns of copyright law is to “promote the Progress of Science and useful Arts.” Allowing the owner of a copyright who held out certain aspects of a work as factual to later claim they were protectable fiction and spring an infringement suit upon unwitting subsequent authors who built on the work would undermine this core concern. Instead, the Court adopted the “asserted truths” doctrine, under which an author’s assertions within and concerning a work—whether made to only a few actual readers, future intended readers, or to the public on publication—that certain narratives or dialogue are truthful estop the author from later claiming they were in fact embellishments and thus protectable creative expression.
The Court found that because the book made “unequivocal representations of truthfulness” to potential publishers, readers of the unpublished manuscript, and future readers of the work if it were published, the play’s writers had reason to believe that it was a factual source in conducting their research. This was particularly true where the copyrighted work was co-written by a participant in the events depicted; therefore, the play’s alleged similarities to events presented as factual in the autobiography could not infringe Corbello’s copyright, since these were unprotectable aspects of the work.
For instance, although Valli testified that DeVito did not in fact introduce him to Mary, the fact that both the play and the autobiography portrayed such an introduction was not a “substantial similarity” for purposes of infringement, as the autobiography held out this introduction as a factual occurrence, and was thus unprotected.
Similarly, although the dialogue surrounding the “Fake Murder” in the autobiography (“Well, asshole, what do you plan to do about it?”) and the play (“Yeah, asshole, what’re you gonna do about it?”) were strikingly similar, the dialogue was unprotectable since the autobiography presented the conversation as historically accurate.
Facts are not protected by copyright. Following Corbello, asserted truths are not protected either.