Jersey Boys, the hit musical based on the meteoric career of the rock group The Four Seasons, was the target of a lawsuit brought in 2007 by Donna Corbello, widow of Rex Woodard, who ghost-wrote a biography of Tommy DeVito, founder and lead guitarist of the Four Seasons during their golden years, 1960-71. When Jersey Boys opened on Broadway in 2005, the DeVito bio was still unpublished. Following Woodward’s death in 1991, Corbello and Woodward’s sister, and later DeVito himself, worked to find a publisher for the book. In the course of these efforts, DeVito registered the copyright in the unpublished book in his own name, and shared a copy of the manuscript with the writers of Jersey Boys. Corbello subsequently won recognition for her husband as author of the book, and pursued her claim that Jersey Boys infringed her husband’s copyright in the unpublished book.

You’d expect this to be a fair-use case, since nonfiction works—such as news stories and historical and biographical books—enjoy less protection against third-party use than do fictional and imaginative works. In fact, copyright law is quite clear that it does not protect facts, only the specific original expression of those facts. So you can freely use a fact already reported by someone else, but you cannot reuse the exact words of the previous writer—except of course in short quotations. Thus the case might have turned on how much of Woodard’s original expression found its way into Jersey Boys and whether that constituted fair use. But no.

At trial, the jury found that the play did infringe the DeVito biography; but the district court overrode the verdict and held that, as a matter of law, the alleged infringements were mostly reuses of unprotected elements of the book. The play recreated the book’s depiction of how band member Bob Gaudio wrote “Sherry”— the 1962 hit song that established the “sound” of the Four Seasons, rocketing the group to fame—at the last minute, dashing in late to a rehearsal. It also included the book’s revelation that the song “Big Girls Don’t Cry” came from a line spoken by Rhonda Fleming in the 1956 movie Slightly Scarlet. But these and other instances adapted from the book were unprotected facts, the court held, and the play’s use of protected expression from the book though minimal, was fair use.

On appeal, the 9th Circuit affirmed the decision, but on different grounds. Under the “asserted truths” doctrine, also known as “copyright estoppel,” even fictionalized description and dialogue may be unprotected if held out to the public as fact. The book itself, and letters sent to publishers by Woodard and later Corbello touted the book’s historically accurate “behind-the-scenes” account of the early years of the band. Because it was held out as a factual account, readers were encouraged to regard the book as completely true, and even elements of the book that were not entirely factual were not entitled to copyright protection because they were presented as fact.

This is nothing new. In 1978 Seattle journalist, film critic, and author William Arnold published the book Shadowland, an account of the life of movie star Frances Farmer, whose glittering film career was cut short when she was notoriously committed to a mental institution and subjected to horrific abuse. In 1982, Mel Brooks’s production company released Frances, a much-praised film about Ms. Farmer, portrayed onscreen by Jessica Lange to wide acclaim. When some scenes in the film directly reproduced incidents and dialogue from Arnold’s book, he sued BrooksFilm for copyright infringement. Although the book was biographical, and was researched from newspaper archives, hospital records, legal records, and interviews with many participants in the actual events, Arnold revealed at trial that he had created many occurrences and conversations in the book, interpolating facts and inventing dialogue for conversations that no one he interviewed could have recalled verbatim but that made their way into the film just as they appeared in the book. The court held that this “fictionalization” was insufficient to merit copyright protection because the book had been held out as fact. Quoting Melville Nimmer’s treatise Nimmer on Copyright, the court wrote:

“[O]ne who represents his work to be completely factual may not in a subsequent infringement action prove that part of the work was fictional and therefore protectable.” Plaintiffs cannot, therefore, now argue that portions of Shadowland were fiction rather than fact and thereby attempt to obtain protection for their work.

Marshall v. Yates, 223 USPQ 453 (C.D. Cal. 1983), citing 1 Nimmer on Copyright §2.11[C] (1983), republished in Decisions of the United States Courts Involving Copyright, Volume 48 (1984), at 637.

Even at the time of the Frances case, 37 years ago, it was already well established that both facts and original elements held out as fact are equally unprotected by copyright. The Jersey Boys case now stands as a good contemporary reminder of copyright estoppel.

As we went to press on this blog post, we learned that Tommy DeVito died Monday, September 21, after contracting COVID-19 at age 92. Our thoughts are with his family, friends, and fans at this sad time.