FACTS Rex Woodward contracted with Thomas DeVito, one of the original members of the Four Seasons rock band, to ghostwrite DeVito’s autobiography. Before it was published, Woodward died, and his interest in the manuscript’s copyright passed to his widow, Donna Corbello. Later, DeVito agreed to grant former bandmates Frankie Valli and Bob Gaudio the right to use “aspects of his life related to The Four Seasons including . . . his creative contributions, biographies, events in his life, name and likeness (the Materials)” to develop a musical about the Four Seasons. The result was a Broadway hit called Jersey Boys. Actors and others involved in the show attributed their inspiration in part to DeVito’s unpublished autobiography. Corbello filed a suit in a federal district court against DeVito and his bandmates for an accounting of the profit earned from this use of the work. The court issued a judgment in the defendants’ favor. Corbello appealed.
ISSUE Is Corbello entitled to an accounting of the profit earned from the use of Woodward’s work to create Jersey Boys?
DECISION Yes. The U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s judgment. As a concurrent owner of the work’s copyright, Corbello was entitled to an accounting.
REASON A copyright owner has the right to create a work derived from the copyrighted work, and the owner can transfer this right to another party. DeVito agreed to grant to Valli and Gaudio an exclusive right to use “the Materials” in a theatrical production. The agreement defined “Materials” to include “biographies,” and Woodward’s account of DeVito’s life qualifies as a biography. The theatrical production of Jersey Boys is a derivative work. DeVito’s granting the right of use constituted a transfer to Valli and Gaudio of DeVito’s ownership of the right to create a derivative work from Woodward’s work. But a concurrent owner cannot transfer more than he or she holds. Thus, DeVito’s grant of his right to Valli and Gaudio did not bind or limit Corbello’s rights in the copyright without her consent. “Because copyright co-owners must account to one another for any profits earned by exploiting that copyright, the district court erred in rejecting Corbello’s claim for [an] accounting.”
CRITICAL THINKING—Legal Consideration Under what circumstances would Corbello not be entitled to an accounting? Why?
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