September 9, 2020
In the late 1980’s, Tommy DeVito, one of the original members of the band The Four Seasons, write an autobiography — ghost-written by Rex Woodard — telling “the whole story” of the band.
In 2005, the musical Jersey Boys opened on Broadway. It was a huge hit, running for over ten years, touring the country repeatedly, and eventually being adapted into a movie in 2014.
In 2007, Woodard’s widow, Donna Corbello, who held all the rights to the autobiography, sued a number of people associated with the band and the musical for copyright infringement, alleging that much of the musical was lifted from the autobiography.
After years and years of litigation, including several summary judgment orders, an appeal and a subsequent jury trial, the case finally came to an end yesterday, some 13 years after suit was initially filed. And the result was not good for Corbello.
The problem with the plaintiff’s case was fairly elementary: you cannot copyright facts. Each of the alleged similarities between the musical and the autobiography were based on historical facts, common phrases or elements that were treated as fact in the autobiography. Even though Corbello was now maintaining that some of those elements were fictional, the court held that an author who holds his work out as nonfiction cannot later claim, in litigation, that aspects of the works were actually made up and thus entitled to full copyright protection.