Jersey Boys Stuck in Copyright Suit

Joseph Perry — Mon, 16 Feb 2015 17:04:11 +0000

Image courtesy of [Andy Roberts via Flickr]

Thomas DeVito, an original member of the Four Season, contracted with a book publisher to write his autobiography three decades ago. They decided that Rex Woodward would help DeVito with the ghostwriting and the pair would split the proceeds from the book. Though they completed it, the book was never published it. In 1991, unbeknownst to Woodward, DeVito registered the book with the United States Copyright Office just four months before Woodward died. DeVito and fellow Four Seasons member Nicholas Macioci executed an agreement nearly ten years later with two other Four Seasons members, Frankie Valli and Bob Gaudio, that granted Valli and Gaudio the exclusive rights to “use and incorporate the Materials [from the unpublished book] in one or more theatrical productions, and any and all ancillary and subsidiary exploitations thereof,” which later became the smash Broadway hit, Jersey Boys.

Shortly before Jersey Boys debuted, Woodward’s widow, Donna Corbello, found out about DeVito’s contractual arrangement with Valli and Gaudio when she tried to publish her late husband’s autobiography to no avail. Corbello then added Woodward’s name on an amended certificate with the Copyright Office as a co-author of the unpublished book. As a widow, she received her husband’s copyright interest in the unpublished book and then sued the producers of Jersey Boys, claiming that the show was a derivative work of the unpublished book, and that Corbello, as heir to her husband’s copyright interest, was entitled to its profits.

The dispute was litigated and appealed in federal court. On Tuesday, the Ninth Circuit issued its opinion: the play was a derivative work, and by entering into the exclusive agreement with Valli and Gaudio, DeVito had effectively transferred his and Woodward’s copyright interests in derivative works. Moreover, since DeVito and Woodward are co-owners to the copyright of the unpublished autobiography, DeVito had to account for any profits made because of the agreement he entered into with Valli and Gaudio. Thus, Corbello would be entitled to profits from Jersey Boys.

Nevertheless, there is still an issue that caused the Ninth Circuit to remand its decision back to the district court. There is a question of whether the reversionary clause in the agreement with Valli and Gaudio would terminate Valli and Gaudio’s exclusive rights to the play, which may render the producers of Jersey Boys copyright infringers of Corbello.

The Ninth Circuit points to the grant of rights clause in the 1999 agreement, which stated that the rights granted would continue if production for Jersey Boys could start in a timely fashion, according to the Hollywood Reporter. If production was not timely, then the rights to the play would revert to Woodward, and the producers of Jersey Boys could potentially be infringers of Woodward copyright.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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U.S. Copyright Law: Enough Protection for Artists?

John Gomis — Fri, 12 Sep 2014 18:00:52 +0000

Image courtesy of [Horia Varlan via Flickr]

In the age of the internet, phones with cameras, and digital picture-taking, it’s become much easier to “steal” artistic property. Both the United States and the international community try their best to prevent the theft of artistic and intellectual material through copyright laws. In addition to regular copyright laws, there also exists something called “moral copyright.” Moral rights are artists’ rights to protect the integrity and ownership of their copyrighted works. They include the right of attribution, the right to have the work published anonymously or pseudonymously, and the right to the integrity of the work. Preserving the integrity of the work creates limitations upon the rights of others to distort the work, alter it, or do anything that attenuates the artist’s relationship with the work.

Read on to find out how both artists’ copyright and moral copyrights are protected by law, the effectiveness of the laws, and the arguments for and against the different laws in place to protect artists’ rights.

U.S. Copyright Law

The stated purpose of U.S. Copyright law is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law protects many forms of artistic works including literary, musical, dramatic, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audiovisual works, sound recordings, derivative works, compilations and architectural works. Even though the realm of works protected is wide, there are differing levels of protection that apply for some of these works. For example, sound recordings are protected in a different manner than written documents are.

Copyright law protects the author’s manner of expressing the idea but it does not protect the idea itself. This means that copyright-protected works of authorship can still be plagiarized under the law. For example, a paper that describes a scientific theory may be protected from reproduction or distribution, but someone else can restate the theory with a different manner of expression and circumvent the original creator’s copyright protection.

Copyright protection ensures that the protection of the work lasts longer than the person who created it. Current law mandates that an individual person’s copyrighted works are protected for the duration of his or her life, plus 70 years afterward. For works created by multiple authors, the length of the protection is based on the life of the last surviving author. If a work is made for hire, an anonymous and pseudonymous works (where the author’s identity is not in Copyright Office records), the duration of protection will be ninety-five years from publication or one hundred and twenty years from creation, whichever is shorter. This makes it less likely that an author’s work will fade into the public domain before he or she has a chance to reap its full commercial value. This also serves as somewhat of a safeguard to an author’s legacy after he or she has passed on.

Copyright protection does not exist for articles that have a “useful function.” For example, an artist’s drawing of a train would be protected by copyright, also the creation of a 3D model of the train would be actionable. However, creating an actual, working version of the depicted train would not be actionable under copyright law. Some creators’ work have both useful and non-useful, aesthetic attributes. Copyright law protects the aesthetic attributes but not the useful ones. If the aesthetic attributes cannot be separated from the useful ones, then the owner does not receive federal copyright protection. This means that owners can potentially lose copyright protection because their creation has applications that are useful to society.

Why do proponents argue in favor of current American copyright laws?

Proponents of the adequacy of U.S. copyright law argue that the duration of the rights gives authors time to effectively profit from their work without fear of having their labors stolen. The law properly makes exceptions for certain socially valuable non-commercial uses of copyrighted material by providing such users with Fair Use as a defense to an infringement claim. This allows copyrighted works to be used for socially beneficial purposes before the expiration of protection without infringing on the author’s commercial or economic interests. The substantiality requirement prevents frivolous uses of copyright protection e.g. for single words.

Why do opponents argue against current American copyright laws?

Opponents of the adequacy of U.S. Copyright protection argue that the exceptions are too broad and too easy to invoke. In certain situations, alleged infringers can cause significant economic damage to a creator’s interests and still be protected by a defense granted by copyright law. Copyright protection only protects the author’s manner of expression, not his ideas. Ideas can often still be plagiarized without giving rise to a copyright infringement claim. Also, useful articles that don’t qualify for patent protection still don’t get copyright protection. Since patent protection is more difficult to obtain and has a shorter duration than copyright protection, some authors are disadvantaged by the usefulness of their work, which is contrary to the purpose of the Copyright Clause of the Constitution. Finally, if content is too minimal then copyright law does not protect it.

Moral Copyright Laws in the United States

U.S. Copyright law does not recognize moral rights beyond the extent to which they are recognized by the Berne Convention, of which the U.S. is a member.

The rationale for the lack of additional moral rights protections in federal law is that Congress believed that they were unnecessary because other areas of law are sufficient to protect artists’ interests. U.S. copyright law, governed by the Copyright Act of 1976, already grants artists the exclusive right to create derivative works. Defamation laws, unfair competition laws and trademark laws governed by the Lanham Act grant artists sufficient civil claims against entities who intentionally or recklessly mislead the public about an author’s work and those who attempt to profit from such conduct. Moreover, certain states have created their own moral rights laws, mitigating the need for a federal statute.

Furthermore, the Visual Artists Rights Act of 1990 (VARA) provides increased moral rights to certain types of art i.e. paintings, drawings, prints, sculptures and still photographic images that are produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. These rights include the right to claim authorship, the right to prevent the use of one’s name on any work the author did not create, and the right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation. Authors of works of “recognized stature” may prevent the grossly negligent or intentional destruction of their work. The phrase “recognized stature” has not been statutorily defined, but there is a lot of case law interpreting the same. VARA rights only apply to a limited set of works but the protections for those works are substantial. Buyers of the works must get written waivers from the copyright owners if they wish to employ any VARA rights. If the rights are not waived then the author or last surviving author of a joint work generally retains them for life.

What are the arguments for keeping the moral copyright laws as they are?

Proponents of the sufficiency of U.S. moral rights law argue that VARA grants vast protection to artists. VARA rights generally last for life and they can only be extinguished by signed, written waivers. They are secure enough to ensure that artists have recourse to act when owners of individual instantiations of their work infringe their creative rights. Furthermore, even when VARA rights don’t vest in an artist’s work, he or she can still utilize copyright, defamation, unfair Competition laws, or any relevant state statute, to defend moral rights of their work.

What are the arguments against keeping the moral copyright laws as they are?

Opponents argue that there are many works that VARA does not protect. For example, VARA doesn’t apply to written works or to works made for hire. Also, since copyright law does not protect ideas, an author who is known for innovating an idea cannot utilize copyright law to protect the moral rights to that idea. Finally, state moral rights laws vary and it is difficult for an artist to know if the state he or she is located in will have jurisdiction over the alleged infringer of their Moral Rights.

Conclusion

Given that art is so subjective and so rarely indexed, it can certainly be difficult for artists to protect their work. There are many different kind of laws in place to protect artists’ copyrights, including some laws that loosely protect moral copyrights. While there are disagreements about the effects and implementations of the laws, its clear that artists’ works do need to be protected.