The widower of the ghost writer of a non-fiction book about Four Seasons member, Tommy DeVito, failed to convince the U.S. Supreme Court[i] to review a ruling that the Broadway musical “Jersey Boys” did not infringe an unpublished autobiography.
Plaintiff claimed DeVito had given the producers a copy of the unpublished book written in the 1980s and that the musical’s creators had plagiarized it.
The musical, Jersey Boys, depicts the history of a popular musical group, the Four Seasons, from its origins in Belleville, New Jersey, in the 1950s. The play launched on Broadway in 2005 and ran for more than ten years. The play also went on touring engagements and was later made into a movie.
The district court granted summary judgment to Defendants. The Court of Appeals reversed in part and remanded for trial. At the close of evidence, Defendants moved for judgment as a matter of law, and the court granted the motion in part and denied it in part, ruling that Defendants  Frankie Valli and Robert Gaudio were entitled to judgment as a matter of law against the claims of copyright infringement, and that all Defendants were entitled to judgment as a matter of law against enhanced damages for willful copyright infringement. However, the jury returned a verdict for Plaintiff.
On appeal, the Ninth Circuit[ii] ruled that any similarities in the book were based on historical facts which are not copyrightable. The court noted that the producers of the play did not infringe the author’s work because facts, in and of themselves, could not form the basis for a copyright claim, and this nonfiction biography was necessarily structured around historical facts and events, which were not themselves copyrightable.
To qualify for copyright protection, a work must be original to the author. A work is original if it is created by the author with at least some minimal degree of creativity. Although the creation of a nonfiction work, even a compilation of pure fact, entails originality, no author may copyright ideas or facts. Copyright protects an author’s original expression in their work but does not protect ideas and facts.
The Ninth Circuit also affirmed the precedent of “copyright estoppel.” This means that an author who holds their work out as nonfiction cannot later claim, in litigation, that aspects of the work were actually made up and therefore, they are entitled to full copyright protection.
[i] US Supreme Court certiorari denied by Corbello v. Valli, 2021 U.S. LEXIS 3488 (U.S., June 28, 2021)
[ii] Corbello v. Valli, 974 F.3d 965 *; 2020 U.S. App. LEXIS 28363.