Patterson Intellectual Property Law

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Ain’t That A Shame: A Musical Copyright Case

The popular musical “Jersey Boys,” which hit Broadway in 2005 and movie theaters in 2014, tells the story of the 1960s vocal group the Four Seasons. But some of the boys are writing a new, contentious chapter to the story. Namely, the U.S. Court of Appeals for the Ninth Circuit recently dealt them a blow in Corbello v. DeVito — a case that demonstrates some of the complexities that can arise from joint copyright ownership.

Cast of characters

Donna Corbello is the heir of Rex Woodward, who had a written agreement to ghostwrite the autobiography of Thomas DeVito, an original member of the Four Seasons. Woodward and DeVito agreed to split the proceeds from exploiting the manuscript. Woodward died in 1991, after completing the manuscript, but before publishing it.

In 1999, DeVito and another band member executed an agreement granting two of their former bandmates, Frankie Valli and Bob Gaudio, the exclusive right to use aspects of their lives related to the band — including their biographies — in the development of “Jersey Boys.” After the musical opened, Corbello sued multiple parties involved, alleging that the musical constituted a derivative work of Woodward and DeVito’s autobiography. A trial court dismissed the case.

Tell it to the court

The appellate court considered whether the 1999 agreement constituted a transfer of DeVito’s copyright interest in the autobiography, rather than, as the trial court had found, a license. If a transfer, Corbello would be entitled to a portion of the proceeds resulting from Valli and Gaudio’s exploitation of that ownership interest.

The appellate court concluded that the agreement was indeed a transfer of ownership of DeVito’s derivative-work interest in the manuscript to Valli and Gaudio. The trial court, therefore, shouldn’t have dismissed the infringement claims based on a license defense.

As the appellate court noted, a co-owner of a copyright can transfer the right to create a derivative work without permission from his or her co-owner. But copyright co-owners must account to each other for any profits earned by exploiting the copyright, so Corbello was entitled to an accounting from Valli and Gaudio.

Working its way back

Even this particular chapter of the Four Seasons story isn’t over. A co-owner of a copyright can’t be liable to another co-owner for infringement, which would seemingly preclude Corbello’s infringement claims against Valli and Gaudio.

But the question remains whether a clause in the 1999 agreement had terminated their ownership right, resulting in infringement. That issue goes back to the trial court for resolution.