The 9th circuit has come firmly down against one of copyright’s more curious dilemmas: namely, claiming that a purely “factual” work nevertheless contains some elements of fiction. This admission is necessary to sue for copyright infringement, since facts are not protected by copyright under 17 USC 102, but works of original expression are.
This blog has written about this problem before. 1 The weight of the vast majority of the case law has not changed. What has changed is that the 9th Circuit (who surprisingly had not previously ruled on the issue), has issued a fairly definitive, bright line ruling: If the Work is held out as being true, the author cannot later claim the contrary. The Court finds the term “copyright estoppel” to be unhelpful, and instead rechristens the principle the “asserted truths doctrine.” 2
The Court states:
“It would hinder, not ‘promote the progress of science and useful arts’ to allow a copyright owner to spring an infringement suit on subsequent authors who ‘buil[t] freely’ on a work held out as factual, contending after the completion of the copyrighted work, and against the work’s own averments, that the purported truths were actually fictions. (citation omitted) Copyright protects the creative labor of authors; it does not protect authors’ post-completion representations about the lack of veracity of their own avowedly truthful work.
We find this copyright-grounded rationale for this principle compelling and so adopt the doctrine. Rather than ‘copyright estoppel,’ we will refer to this rule of copyright law as the ‘asserted truths’ doctrine, because it is the author’s assertions within and concerning the work that the account contained in the book is truthful that trigger its application.” 3
The case is Corbello v. Valli, and concerns the long running lawsuit between the co-owner of a copyright in an unpublished “autobiography” of Four Seasons member Tommy DeVito and the producers of the Broadway musical “Jersey Boys.” To say the musical was a success is a bit of an understatement. It ran for ten years on Broadway and won four Tony awards. It was also adapted into a motion picture in 2014. 4
“The [unpublished] Work reads as a straightforward historical account and is presented as an autobiography, with DeVito listed as a co-author. At the outset of the Work, the first-person narrator, whom the reader understands is DeVito, describes the book as the ‘complete and truthful chronicle of the Four Seasons.’ The narrator contrasts the Work with assertedly inaccurate accounts that others had published, and notes his own ‘candor.’ In addition, Woodard and [Plaintiff] both emphasized in letters to potential publishers that the Work provided a behind-the-scenes factual look at the Four Seasons.” 5
The Court examines six points of contention, where copying is alleged.
- Tommy DeVito’s introduction
- Creation of the song “Sherry”
- Creation of the song “Big Girls Don’t Cry”
- “Rivalry” between the Beatles and the Four Seasons
- Premiere of the song “Dawn”
- Induction into the Rock and Roll Hall of Fame
The Court’s response is:
- [Plaintiff] alleged that this description of DeVito is substantially similar to the one in the Play and so infringing. But DeVito is not a fictional character whose personality was created in the Work. This depiction of DeVito—as Corbello’s expert put it, his ‘voice, cool demeanor, and braggadocio’—is not original to the Work, and so not a protectable element.(citation omitted) A character based on a historical figure is not protected for copyright purposes. 6
- Both the Play and the Work depict Bob Gaudio arriving late to a rehearsal excited about a new song he just wrote, “Sherry,” which—no surprise—became a major hit… The only similarities are unprotectable historical facts: Gaudio wrote the song at the last minute, he was late to rehearsal, and the song was ultimately successful. 7
- The Work recounts that Bob Crewe, a producer and songwriter who worked with the Four Seasons, was inspired to write the song “Big Girls Don’t Cry” after watching a movie in which a female character dramatically says exactly that— ‘big girls don’t cry.’… As the district court correctly concluded, the ‘only similarity is the unprotectable historical fact that the song was inspired by the Rhonda Fleming line.’ That similarity does not include any protectable element of the Work. 8
- The Work states that ‘[i]n the Beatles we are not just competing against another band; the Beatles come to represent a whole social movement. [The Four Seasons] never aspire to be more than entertainers.’… The similarities between the Work’s allusions to the Beatles and the longer, more detailed and more evocative comparison in the Play are the words ‘social movement’ and the unprotectable historical fact that the two music groups competed for record sales and chart placements. 9
- The Work recounts that the Beatles had ‘hit the public consciousness like a load of bricks’ when the Four Seasons song “Dawn” was ready for release. The Work then goes on to describe competition between the two bands in the Billboard charts, noting that “Dawn” charted third, ‘sandwiched in by the Beatles at number one, number two, number four and number five!’… Again, it is an unprotectable historical fact that the Beatles and the Four Seasons generally competed for chart placement. That “Dawn” charted against songs by the Beatles is similarly an unprotectable historical fact. 10
- In the Work, DeVito describes ‘reunit[ing] with Frankie Valli, Bob Gaudio, Nick Massi and Bob Crewe for the first time since 1965. I felt like I was stepping from a time machine.’ In the play, as the Band performs, DeVito asks, ‘Is this like being in a fuckin’ time machine, or what?’ The idea that band members performing together after many years apart would evoke the feeling of a time machine flows naturally from the plot premise of a band reuniting and is classic scenes-a-faire. (citation omitted) And as the district court correctly ruled, the words ‘time machine’ constitute an ordinary phrase and so is not protectable. 11
The Court goes even further when recollection of events differ from person to person. Regarding the conversation about the creation of the song “Walk Like a Man”:
“The parties do not dispute that this conversation actually happened, so the event itself is not protectable. They do dispute whether the particular language used in the Work was original expression, rather than a report of what was actually said. [Plaintiff] claims that the dialogue was ‘Woodard’s invented banter,’ and thus protected expression. DeVito testified that he did not remember supplying Woodard the words ‘anthem’ or ‘twisted around a girl’s finger.’ Gaudio testified that the dialogue does reflect the substance and language of the actual conversation, and that he described the argument using these phrases to the writers of the Play.
We need not resolve this factual dispute. Whether the dialogue accurately represents what was actually said does not change our analysis. The dialogue is held out by the Work as a historically accurate depiction of a real conversation. The asserted facts do not become protectable by copyright even if, as [Plaintiff] now claims, all or part of the dialogue was made up.” 12
“At his deposition, [Frankie] Valli testified that DeVito did not in fact introduce him to Mary Mandel, and that he couldn’t remember whether DeVito helped set them up. Whether Valli’s recollection is correct or not does not affect whether the Work’s version is protectable as an original creation of the writers. DeVito may have remembered events differently than Valli did, or he may have reported his memory to Woodard inaccurately, or he or Woodard may have invented the story that he introduced Valli and Mary. Any such inconsistency, inaccuracy, or invention does not transform what was represented in the Work as a completely truthful account into creative fiction protectable by copyright.” 13
In other words, if you say “it’s a fact,” you’re stuck with it.