Appeals Court Affirms that Facts and “Asserted Truths” Are Not Protected by Copyright

“Jersey Boys @ August Wilson Theatre on Broadway” by BroadwayTour.net is licensed under CC BY-SA 2.0

A recent decision from the Ninth Circuit Court of Appeals, Corbello v. Valli, may finally put to bed over a decade of litigation over alleged copyright infringement in the hit Broadway musical, Jersey Boys. The play depicts the history of the musical quartet, Four Seasons, which rose to prominence in the 1960s. The Ninth Circuit held that historical factsโ€”even those which an author later claims are untrueโ€”are not entitled to copyright protection, and cannot form the basis of a successful copyright infringement claim. The decision provides substantial clarity for authors wishing to use historical facts from other works in their own later works, and affirms that facts are not copyrightableโ€”full stop.ย 

Background

The case concerned several alleged similarities between Jersey Boys and an unpublished autobiography written by Four Seasons member Tommy DeVito and a ghostwriter, Rex Woodward. The autobiography purported to be a โ€œstraightforward historical account,โ€ and describes itself at the outset as the โ€œcomplete and truthful chronicle of the Four Seasons,โ€ narrated by DeVito. The work was completed in 1991, but Woodward died shortly thereafter, and DeVito and Donna Corbelloโ€”Woodwardโ€™s widow and the plaintiff in the caseโ€”were unable to find a publisher for the work. 

In 2005, Jersey Boys debuted on Broadway, where it ran for 12 years. The musical also toured North America and the United Kingdom several times and won four Tony awardsโ€”by all accounts a huge success. Corbello believed that the success of Jersey Boys could lead to increased interest in the band, and in 2007, sought to confirm the copyright registration for the unpublished autobiography, but discovered that the copyright for the work had been erroneously registered in DeVitoโ€™s name only. After re-registering the copyright for the autobiography in both authorsโ€™ names, Corbello learned that the playโ€™s writers were given access to the work to use in their research.

In 2007, Corbello sued DeVito for breach of contract, various forms of copyright infringement, equitable accounting, and other causes of action. After multiple proceedings, the case proceeded to trial, where the jury found that Jersey Boys infringed the unpublished autobiography and that 10% of the playโ€™s success was attributable to the autobiography.  However, the district court subsequently found that Jersey Boysโ€™ use of the copyrightable portions of the autobiography was fair useโ€”a doctrine which allows creators to use brief portions of copyrighted works without permission or payment for certain purposes, such as criticism, news reporting, or parody. Unsatisfied with this finding, Corbello appealed to the Ninth Circuit, which heard the case in June 2019.

The Decision

In a decision by Circuit Judge Marsha Berzon, the court rejected Corbelloโ€™s argument that the similarities between the Jersey Boys and the autobiography infringed Corbelloโ€™s copyright in the autobiography, overturning the juryโ€™s finding of infringement altogether without discussing whether fair use would have applied. This was because each of the elements that the Jersey Boys creators took from the autobiography were historical events and facts, which are not protected by copyrightโ€”a basic tenet of copyright law. 

The court examined in detail each of the alleged similarities between the autobiography and the playโ€”including certain dialogue, origins of Four Seasons songs, and the occurrence of a particularly raucous partyโ€”and concluded that the similarities were due to the use of the same historical facts in both works. In some cases, the similarity was even based on a well-known event that DeVito had recounted elsewhere, such as a staged murder in one of the band memberโ€™s cars. The court concluded that each similarity between the two works was based on historical facts as well as shared common phrases and what are known scรจnes-ร -faireโ€”ideas and scenes that are standard in the treatment of a certain topic, such as a shoot-out in a western film.

โ€œAsserted Truthsโ€

Judge Berzon rejected Corbelloโ€™s argument that because some of the facts Jersey Boys took from the autobiography were apparently fabricated by DeVito, those should be entitled to copyright protection as non-factual creative expression. In what it called the โ€œasserted truths doctrineโ€ (known as โ€œcopyright estoppelโ€ in other jurisdictions), the court stated that where a text represents itself as historically accurateโ€”and therefore factual in natureโ€”the copyright holder cannot later claim that the work was fictionalized in order to obtain copyright protection. 

The court examined both the text of the autobiography and the manner in which it was submitted to publishers and found it was represented as fact: the work explicitly represented itself as factual, and pitch letters emphasized that the autobiography would disclose โ€œthe truthโ€ about several events and reveal โ€œthe secret past that the performers successfully hid for almost three decades.โ€ The fact that Corbello now claimed that some elements of the autobiography were fictionalized or inaccurate and that these same elements were present in the play did not change the courtโ€™s analysis: what matters is how the text is presented, not how it is later characterized by the copyright holder. 

Finally, the court rejected the argument that the โ€œasserted truth doctrineโ€ did not apply to an unpublished work, finding that regardless of whether the audience for the work is โ€œa few actual readersโ€ (for unpublished works) or โ€œthe general public,โ€ the representations of truthfulness determine the factual nature of the work for purposes of copyright protection. It is thus the apparent nature of the workโ€”in this case, a factual autobiographyโ€”and not whether it is in fact fully accurate or factual, that determines whether it is entitled to copyright protection, or unprotected as factual in nature.

Implications for Authors

This decision clarifies the bounds of unprotected facts under copyright law and simplifies the process a court must undertake to determine whether allegedly infringing uses are factual in nature, or events recounted actually happenedโ€”it need only look to the work itself to see if it represents itself as factual. It also underscores the important point that facts are not protected by copyright law, and makes it easier for creators to use facts from other works in their own works without fear of copyright liability. The decision serves as an obstacle for those who seek to bring copyright infringement suits based solely on factual information, strengthening protections for authors who seek to use facts present in copyrighted works to contribute knowledge and scholarship to their communities. It also makes clear that these creators will not be held liable for using factual information from other works that later turns out to be untrue, further easing the threat of copyright liability when nonfiction works are relied upon as accurate.


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