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Ninth Circuit Remands 'Jersey Boys' Copyright Infringement Case

Frankie Valli performs his hits.

The Ninth Circuit Court of Appeals reversed a district court’s summary judgment ruling, stating that a question of fact remained whether former members of Four Seasons music group infringed upon a biographer's copyright interest due to a reversionary clause in an agreement.

A reversionary clause is a provision generally used where the property owner reserves future ownership rights for himself or his heirs if a particular condition occurs.

The Jersey Boys is a successful Broadway musical and motion picture, depicting the rise and fall of the rock and roll group the Four Seasons, which had a series of hits from 1962 to 1967.

Musical grosses $489.7 million

The Jersey Boys movie, released in June 2014, grossed a worldwide total of $61.8 million in sales as of October 2014. The Broadway League reports the musical as of February 2015 has grossed $489.7 million since the October 2005 release.

Donna Corbello, is the wife of late Rex Woodard. In 1988, Rex Woodard received a written agreement to ghostwrite the autobiography of Thomas Devito, a member of Four Seasons.

The biography was not officially published at the time of Rex’s death in 1991.

In 1999, Thomas Devito and Nicholas Macioci granted Frankie Valli and Bob Gaudio, the exclusive right to use “aspects of [their lives] related to The Four Seasons including, by way of example, [their] creative contributions, biographies, events in [their lives], names and likenesses to develop a musical stage performance about the “Four Seasons.”

The play did not generate any interest until 2004, when Dodger Theatricals, Inc. agreed to produce the work.

At this time, Valli and Gaudio entered into a separate agreement with Dodger granting the right to use the band name, music and band members’ life stories and names.

Corbello contends as the sole heir and copyright holder she should receive a share of the profits because the musical is a derivative work of the autobiography written by her late husband.

The band members and other defendants contend that the 1999 agreement referred to general life stories rather than documented life histories. Thus, were not subject to a transfer of ownership interest.

Corbello’s Discovery

Corbello attempted to republish the biography and regenerate interest in the band in 2005, when the Jersey Boys musical was set to premiere on Broadway.

The following year, she discovered Thomas Devito previously registered, solely in his name, a writing identical to her husband's. Subsequently, Corbello filed an application to add Woodard as the co-author and co-claimant.

On appeal, the defendants argued that Devito was prohibited from transferring that right without permission from his co-owner Corbello.

The defendants relied on Sybersound Records v. UAV Corp., a copyright infringement case. 517 F.3d 1137 (9th Cir. 1998) (The Ninth Circuit concluded only rights that exist under copyright law are those granted by statute.)

The Ninth Circuit Court clarified that a joint owner is unable to transfer more than he holds and if the co-owner transfers their rights, [Valli & Guadio] only have exclusive rights to the extent of the assigning co-owner.

The court ultimately decided that DeVito transferred an ownership interest to the his former band mates but Valli and Gaudio's rights may have terminated prior to the production of the musical.

When DeVito, Valli and Gaudio executed the agreement, the members had ownership rights to DeVito's name, biographies and aspects of his life to produce the play.

Reversionary clause

However, the reversionary clause in the 1999 agreement provided the co-owners rights would continue if the initial production contract failed and a second production contract was executed within two years of the initial producer's rights expiring.

The initial producer’s rights expired in December 2002. Valli and Gaudio reached the second production deal with Dodger Theatricals in May 2004 and the production took place in 2005.

If the second production contract was not fully executed before December 2004, Valli, Gaudio, and others involved rights to DeVito's material may have expired and infringed on Corbello’s copyright interest.

The case has been remanded to the lower court to decide whether Valli and Gaudio’s rights did in fact expire due to the reversionary clause.

The case is Donna Corbello v. Devito, et al., Case No. 13-15826, United States Court of Appeals, Ninth Circuit.

Gregory H. Guillot, Gregory H. Guillot, P.C. Dallas, TX argued the cause for the plaintiff-appellant.

Daniel M. Mayeda, Leopold, Pietrich & Smith. P.C., Los Angeles, CA, argued on behalf of the defendants-appellees.

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