Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Corbello v. Valli, No. 17-16337 (Sept. 8, 2020), affirming the district court’s application of the copyright fair use doctrine.
Fans at the intersection of law and musicals have followed the case as it wound through the Courts. Corbello centered around allegations that the 2005 Jersey Boys musical infringed upon the copyright of the autobiography of Tommy DeVito (“the Work”). In 1988, DeVito worked with Rex Woodard to write the “whole story” of The Four Seasons. The resulting work, an autobiography of DeVito ghostwritten by Woodard, did not find a commercial outlet.
After Woodard’s widow learned that the authors of Jersey Boys had access to the Work while developing the production, she sued, naming fourteen defendants and twenty causes of action – including various copyright infringement claims. At trial, the jury found that Jersey Boys infringed the copyrighted Work, but the court granted judgment as a matter of law as to fair use. Corbello appealed.
The Ninth Circuit reviewed the judgment as a matter of law de novo. After consideration of the twelve alleged similarities between Jersey Boys and the Work, the Court affirmed. Addressing the first six alleged similarities, the Court applied the extrinsic test evaluating: (1) whether the plaintiff identified similarities between the copyrighted and accused works; (2) disregarding any similarities based on unprotectable material or authorized use; and (3) whether the remainder as a whole is entitled to a “thick” or “thin” scope of protection. The Court concluded each of the first six alleged similarities covered non-protectable elements and thus failed the extrinsic test.
For the remaining six asserted similarities, the Court adopted the doctrine of copyright estoppel. This doctrine holds that elements of a work presented as fact are treated as fact, even if an author later asserts infringement and contends the elements are, in fact, fictional works. The Court took issue with the characterization of this doctrine as a species of estoppel, given that detrimental reliance is not an element, and estoppel is “created solely by plaintiff’s affirmative action and representation that the work was factual.” Rebranding principle as the “asserted truths doctrine,” the Court held it applied because the Work was “expressly and repeatedly held out as a factual account” by its author. The Court further confirmed publication of the Work was not necessary for application of the “asserted truths doctrine.”