Joint Work Determination Does Not Exclude a Derivative Work Determination

Dr. Ross W. Greene developed the Collaborative Problem Solving Approach, a method for treating children with explosive behaviors.  Greene wrote The Explosive Child, a book describing his methods.  Greene and Dr. J. Stuart Ablon co-authored the book Treating Explosive Kids

A disagreement developed between Greene and Ablon, after which Greene sued Ablon for copyright infringement.  Greene alleged that slides in Ablon’s Power Point presentation infringed Green’s copyrights in both The Explosive Child and Treating Explosive Kids.  Greene also called for an accounting for Ablon’s use of Treating Explosive Kids.  Before the case went to a jury trial, the district court ruled that Treating Explosive Kids could not be both a joint work and a derivative work as a matter of law.  The district court ruled that Treating Explosive Kids was a joint work and that because Ablon co-owned that book, he could not infringe it as a matter of law.  The jury awarded Greene $19,000 against Ablon on Greene’s copyright claims.  Both Greene and Ablon appealed to the First Circuit Court of Appeals.  

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Ghost Writer Heir Haunts Jersey Boys Collaborators

Lawyer, journalist and “Four Seasons” fan Rex Woodard and Thomas DeVito, an original band member, entered into a written agreement for Woodard to ghostwrite DeVito’s autobiography (the Work).  Woodard and DeVito agreed to split the proceeds from publishing and exploiting the Work.  Woodard died in 1991, after completing the Work, but before publication.  DeVito registered the Work under his name four months before Woodard’s death.  The Work was never published.

A convoluted series of agreements and events followed.  Ultimately, the musical “Jersey Boys” incorporated some portion of the Work.  Donna Corbello, Woodard’s widow and heir, sued DeVito, band members Frankie Valli and Robert Gaudio and the writers, directors and producers of the “Jersey Boys” for a variety of claims, including copyright infringement.  Corbello argued that “she, as legatee of Woodward’s joint copyright in the Work, deserves to share in the profits reaped by the various Appellees’ licensing and assignment, or infringement, as the case may be, of the underlying rights.” (Opinion pdf page 8).  The district court ruled against Corbello on all issues and taxed costs against her.

The Ninth Circuit framed the issue:  “We must decide whether a contractual grant of the exclusive right to use an individual’s ‘biographies’ to create a Broadway musical stage play also constitutes a transfer of a copyright ownership interest in that individual’s unpublished autobiography.”  (Opinion pdf page 5).

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