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A federal court, overturning a jury verdict on copyright infringement June 14, said any copying blockbuster Broadway musical “Jersey Boys” did of an unpublished autobiography was fair use ( Corbello v. DeVito , D. Nev., No. 2:08-cv-00867-RCJ-PAL, 6/13/17 ).The U.S. District Court for the District of Nevada called the hit musical about the popular 1960s band the Four Seasons “highly transformative.”The court went through the alleged points of comparison and found that less than one quarter of a percent of the words in the play might have been copied from an unpublished autobiography of former band member Thomas DeVito.
Any copying the musical’s creators might have done was fair use, the court said. Other similarities were due to the fact that both the book and the musical were based on actual historical events, it said.
U.S. copyright law allows copying of protected works under certain circumstances, known as fair use, which commonly applies to things such as news reporting, criticism and commentary, and education. Copying can also be allowed if the work is used in a completely new or unexpected way.The lawsuit was brought by Donna Corbello, the widow of the Rex Woodard, the ghostwriter of the unpublished autobiography.
Corbello disagreed with the court’s ruling and would appeal, her lawyer Gregory H. Guillot of Dallas told Bloomberg BNA.
However, if Corbello does appeal, the fair-use ruling is unlikely to be overturned, David Korzenik of Miller Korzenik Sommers Rayman LLP, New York, who represented the play’s producers, told Bloomberg BNA.
Korzenik said that the court found fair use under a standard from a 1985 Supreme Court ruling, Harper & Row, Publishers, Inc. v. Nation Enterprises, rather than the more recent Campbell v. Acuff-Rose Music, Inc. (1993).
Plaintiffs generally prefer Harper & Row to Campbell, because it is harder on defendants claiming the fair-use defense, he said. “So if he’s granted us fair use under Harper, we are super-secure under Campbell.”
The “Jersey Boys” musical debuted in 2005. Corbello sued, saying that it infringed the unpublished book written by her late husband.
Judge Robert C. Jones, who issued the court’s ruling, said that the majority of similarities between the manuscript and the musical were due to the fact that they were both about the same factual events, which cannot be protected by copyright law.
Should the fair-use ruling be reversed on appeal, the case could go back to trial because the court rejected the jury’s rulings on whether the play’s producers might have had contractual authority to use material from the book and, if the play did infringe, what percentage of its success could be attributed to the alleged copying.
Korzenik said he doesn’t expect that a new trial will be needed.
Miller Korzenik Sommers Rayman LLP, Leopold Petrich & Smith PC, and Black & LoBello Attorneys at Law represented the “Jersey Boys” production, and its writers and director. Gregory H. Guillot PC and Lewis Roca Rothgerber Christie LLP represented Corbello.
To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com
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