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1 December 2016Copyright

‘Jersey Boys’ musical infringes author’s copyright, says jury

A jury has ruled that the musical “Jersey Boys” infringed the copyright of a late author who wrote an autobiography of a band member featured in the musical.

Donna Corbello is the widow of Rex Woodward, who wrote an unpublished autobiography of Tommy DeVito, a member of The Four Seasons. She sued DeVito in 2007 at the US District Court for the Eastern District of Texas, Beaumont Division for copyright infringement.

The Four Seasons, a rock and pop band who were popular in the 1960s and 1970s, were formed by lead singer Frankie Valli and keyboardist and tenor vocalist Bob Gaudio. “Jersey Boys” chronicled The Four Seasons’ early days.

In 1981, Woodward wrote an article called “The Four Seasons A Lesson in Survival”, which was published in magazine Goldmine, aimed at the collectors market for records.

Seven years later Woodward interviewed DeVito, who allegedly told “the true story” of the band, a story which had been unaccounted for years.

An agreement was reached between DeVito and Woodward for him to write an autobiography, and a letter of agreement was sent by Woodward in December 1988.

By 1990, Woodward had almost completed the work, called “Tommy DeVito—Then and Now”, and obtained a copyright registration from the US Copyright Office in 1991. He died that same year.

Corbello inherited the rights to the novel.

In 2005, “Jersey Boys” opened on Broadway.

According to the 2007 suit, Corbello argued that the musical infringed Woodward’s unpublished novel.

She asked for damages exceeding $5 million, consequential damages, attorneys’ fees and costs for bringing the action.

In 2011, the case moved to the US District Court for the District of Nevada, which ordered that Corbello’s summary judgment was granted in part and denied in part.

The court denied summary judgment on the 12th cause of action (covering a licence), and granted in part the 13th cause (covering a sub-licence). It denied summary judgment to the defendants.

In the suit, Corbello argued that DeVito had granted an “exclusive, perpetual, worldwide” licence to use and adapt certain materials, including his biographies, to create a musical based on the life of the band.

Additionally, defendants Marshall Brickman and Eric Elice, who wrote the book for the “Jersey Boys” musical, allegedly relied in part on an “unpublished autobiography by DeVito” when they created the libretto (text) for the musical.

In 2013, Corbello appealed against the decision at the US Court of Appeals for the Ninth Circuit, which reversed the district court’s summary judgment, vacated the court’s assessment of costs, and remanded the case for further proceedings.

The Ninth Circuit said that the district court’s summary judgment on the ground of implied licence was inappropriate.

A jury at the Nevada court said on Monday, November 28 that DeVito did not grant the defendants an implied licence to use the unpublished autobiography in the creation of “Jersey Boys” and that the play infringed Corbello’s copyright.

A spokesperson told WIPR that no-one from Dodgers Theatricals, the producer of the musical, Jersey Boys London or Amanda Malpass PR is available to comment on the ruling.

Gregory Guillot, president of Gregory H Guillot, and Robert McKirgan, partner at Lewis Roca Rothgerber Christie, spoke on behalf of Corbello and said: “We are pleased with the verdict, and look forward to the next phase of the trial, which will assess damages for the defendants’ infringement.”

Counsel acting for DeVito have made public statements saying that they will appeal against the verdict, and cited "alleged inconsistencies in rulings and errors in jury instructions". They added that Corbello is "seeking ownership of historical facts and events".

Guillot and McKirgan have not commented on these allegations, other than to say that the lawsuit is not based on the retelling of unprotected historical facts, but instead arose from the "Jersey Boys" writers’ copying of protected expression directly from Woodward’s unpublished work and the unlawful use of its characterisations and accounts for the play, according to a press release obtained by WIPR.

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