Court finds that use of unpublished Tommy DeVito bio in ‘Jersey Boys’ musical is fair use

“Jersey Boys” by Andrew James. Licensed under CC BY 2.0.

The stage jukebox musical Jersey Boys, a show which uses the music of Frankie Valli and the Four Seasons to tell that band’s story, has been a great financial success for its creators. As of March 2014, the show had surpassed $1.7 billion in worldwide gross sales, $468 million of that total coming from the Broadway production of that musical. In the weeks leading up to the closing of the Broadway version this January, finishing an 11-year run, Jersey Boys was grossing more than $1 million per week in ticket sales.

Such a successful run would naturally make a theatrical production a potential target for copyright infringement proceedings. In December 2007, the widow of an author who wrote an unpublished biography of Four Seasons’ Tommy DeVito sued DeVito, alleging that the unpublished biography was used as source material for the stage musical. Almost nine years later, in November 2016, a jury verdict held that 10 percent of the financial success of Jersey Boys was attributable to the DeVito autobiography.

In mid-June, this case was overturned on appeal after a federal judge in the U.S. District Court for the District of Nevada (D. Nev.), entered a finding of judgement as a matter of law in favor of defendant DeVito’s fair use defense. As the judge noted, at most 145 creative words from the biography, constituting about 0.2 percent of the 68,500 words comprising that work, was the plaintiff’s basis for copyright infringement. “This factor strongly weighs in favor of a finding of fair use, at least where the ‘heart’ of the Work was not infringed,” the order reads. Further, the biographical nature of the work meant that uncopyrightable facts about DeVito’s life, and not the author’s writing style, comprised the heart of that work. As well, the 12 similarities between the biography and the musical accounted for 0.4 percent of the musical’s script and 0.2 percent of the running time, according to the recent court order.

“The finding that 10% of the success of the Play was attributable to protected elements copied from the Work cannot be supported by the evidence adduced at trial,” the order reads. The order would go on to say that the jury in the case had an understandably very difficult job on its hands, citing the tedium of comparing a book which is several hundred pages long to a musical which lasts several hours. “Those comparisons are made even more difficult when they must be guided by over 40 pages of technical legal instructions,” the judge wrote, adding that the law in this area is not clear in all respects.

This copyright suit is not the only one which the producers of Jersey Boys have had to face down. The use of a seven-second clip from The Ed Sullivan Show featuring a performance by the Four Seasons prompted a suit from the current holder of the copyrights to that 1960s television show. The Ninth Circuit Court of Appeals affirmed a lower court’s holding of fair use in that case, reportedly finding that the use of that clip was as a historical reference point, creating a new, transformative work while using a small portion of the copyrighted material.