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create a Broadway musical stage play also constitutes a transfer of a copyright ownership interest in that individual’s unpublished autobiography.”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).