By Tyler Droste, Gutwein Law
Recently, the Ninth Circuit Court of Appeals affirmed a decision at the trial court level in Nevada granting summary judgment in favor of the creators of the musical "Jersey Boys" as to not have infringed an autobiography of one of the band members, Tommy DeVito. The plaintiff in the case, Donna Corbello (widow of the author of the autobiography), had originally been awarded a jury verdict in Nevada federal court wherein the jury determined that 10 percent of the musical's success was attributable to the infringement of the autobiography. The trial court Judge Robert C. Jones then ruled in favor of the defendants' appeal due to determining that prior to the musical the autobiography had "no market value" and that the plaintiff had no copyright to the music, which made up over 50 percent of the musical.
Furthermore, the trial court judge found that the musical was comprised of less than "one percent of creative expression" that was found in the autobiography and that the musical used "less than 1 percent of the Work." He further elaborated that his belief was that the musical itself had likely increased the value of the autobiography. The Ninth Circuit in support of the lower court's decision reasoned the similarities between the two works are based on historical facts that are not copyrightable and applied the extrinsic test and analysis under the asserted truths doctrine in support of their decision. Read more.
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