AUTHOR OF TOMMY DEVITO AUTOBIOGRAPHY WANTS NINTH CIRCUIT TO RE-INSTATE JURY VERDICT IN HER FAVOR
Steven T. Lowe
On June 11, 2019, author Donna Corbello (“Corbello”) urged the Ninth Circuit to revive a jury verdict finding the creators of the hit Broadway musical “Jersey Boys” stole material from her husband’s unpublished book. Even though the jury found in her favor and issued her an award in June of 2017, the judge thereafter issued a “judgment as a matter of law” in favor of the defendants on the fair use issue.
Corbello argued that U.S. District Judge Robert Jones made it as difficult as possible for her to win a copyright infringement trial against the creators of Jersey Boys by selecting 12 specific examples out of hundreds of pages to determine if there were substantial similarities between the works. “Judge Jones didn’t like the verdict and then decided to improperly grant the creators’ bid for judgment as a matter of law,” Corbello argued.
In November of 2016, the jury found that the “Jersey Boys” writers lifted material from an unpublished autobiography of Tommy DeVito, the lead guitarist and a founding member of the Four Seasons, which autobiography was ghostwritten by attorney Rex Woodard (“Woodward”), who died in 1991. However, in June 2017, Judge Jones overturned the verdict, saying the panel reached the wrong conclusion after a “tedious and complex” trial.
Corbello appealed the lower court’s decision and on June 11, 2019, argued that this is not a “that’s my movie case” where someone comes out of the woodwork and claims producers stole their novel; Corbello argued that her case is different, because here’s clear evidence that the Jersey Boys creators had a copy of the autobiography and used it to create the musical. Corbello also argued that the book should be entitled to “thick copyright protection,” as opposed to thin protection, because access was undisputed. Corbello’s expert testified that Jersey Boys copied 30% of Woodard’s book, including fictional dialogue that Woodward made up. Corbello also pointed to the fact that the judge made a reversible error by selecting only 12 examples to determine if the works were “substantially similar.”
At oral argument, U.S. Circuit Judge Marsha S. Berzon appeared skeptical, questioning how Corbello can “possibly prevail” on the argument that the works are similar. She said the problem is that people making historical works obviously read other historical accounts of the subject matter and they rely on those works. “It’s different from a novel where the novel’s plot is made up…No one is making this up.” Judge Berzon also said “there appears to be only one real example where the language in Jersey Boys was substantially similar to language in the book.”
However, also at oral argument, U.S. Circuit Judge William A. Fletcher said it struck him that there are “real similarities between the play and the book,” pointing to a specific scene where the band members came up with the title to the song ‘Walk Like A Man,’ “Those look to me awfully similar, and they look to me that they’re taken from the work.”
The panel took the arguments under submission.
Judges A. Wallace Tashima, William A. Fletcher and Marsha S. Berzon sat on the panel for the Ninth Circuit.
Corbello is represented by Gregory Guillot of Gregory Guillot PC.
The Jersey Boys creators are represented by David Korzenik of Miller Korzenik Sommers LLP and Daniel Mayeda of Leopold Petrich & Smith LLP.
The case is Donna Corbello v. Thomas Gaetano DeVito et al., case number 17-16337, in the U.S. Court of Appeals for the Ninth Circuit.
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