Fair use is the fifth season in Jersey Boys case

Corbello v. DeVito, No. 08-cv-00867 (D. Nev. Jun. 14,
2017) 
One reason fair use jurisprudence can be frustrating is that it has become the place to store many conclusions that the defendant didn’t copy enough of what was protectable in the accusing work to infringe.  Because the de minimis doctrine is itself so tiny (without good reason), and because courts are so reluctant to say that nothing protectable was copied, judges reconsider those issues in the multifactor fair use test, and unsurprisingly the fact of minimal copying of expression leads to favorable findings on the other factors.  I would still favor a more robust standard for finding copying so that we didn’t have to waste so much time on the other factors, some of which (as the court here notes) may not be appropriate when the issue is minimal copying.
Corbello is the widow and heir of Rex Woodard, who assisted Tommy
DeVito in writing his unpublished autobiography Tommy DeVito — Then and Now,
telling the story of his career with the musical group The Four Seasons. Woodard
and DeVito tried to find a publisher for the book, and provided an outline to
actor Joe Pesci to explore adaptation to a screenplay. But nothing worked out,
given waning interest in The Four Seasons. 
DeVito falsely represented that he was the sole author, and used the
work to develop the screenplay for Jersey Boys, a hit musical.  After lots of back and forth, a jury found defendants
liable for infringement, found that there was no fair use, and found that 10%
of the success of the play was attributable to infringement of the work.
During trial, the court stated it believed that defendants
were entitled to a directed verdict on the fair use issue but did not want to
risk a retrial in the case of reversal. 
True to its word, the court here explains why, though fair use is often
a jury question, the record here entitled defendants to judgment as a matter of
law.
Market effect was the most important, so the court started
there. Before the play debuted, the work had no market value, as various people
had tried to get it published from 1990-2005, to no avail because of lack of
public interest.  Any profit potential
today is almost certainly because of the play, which itself was over half
musical performance by running time, and the remainder of which used less than
1% of the work.
Factor one: Commercial use weighed against a finding of fair
use.
Factor two: The biographical, factual nature of the work
favored fair use. The unpublished status of the work would ordinarily disfavor
fair use, but here the publication of (small parts of) the work did not
diminish its value by preempting plaintiff’s right of first publication.  The reason the work hadn’t been published was
that it was unpublishable, despite years of effort, creating an atypical
situation in which there was no deliberate choice to withhold the work from the
public. Thus, the biographical nature of the work predominated, favoring fair
use.
Factor three: After discounting similarities due to
unprotectable elements of the work, the jury was permitted to consider 12
similarities between the work and the play. The amount of protectable, creative
material potentially copied in relation to the work as a whole was less than
1%.  The extent of the similarity was
minimal, as two examples indicate: a discussion about the song title and
subject matter “Walk Like a Man” had very similar dialogue, though with
different characters and tone. “Assuming the jury believed the dialogue was not
a historical recounting but a creation of DeVito and Woodard—a finding that is
unlikely and perhaps not even permissible given the Work’s claim of historical
accuracy—the closely copied dialogue consists of about 65 words.”  Similarly, the work said, “[T]he Beatles come
to represent a whole social movement. We never aspire to be more than
entertainers,” and the “social movement” line was “arguably protectable as
original expression beyond bare historical fact.”  The play said,  “We weren’t a social movement like the
Beatles. Our fans didn’t sit and put flowers in their hair and try to levitate
the Pentagon.…”  And so on.
At most, the jury could have found about 145 creative words
to have been copied, whether as dialogue or creative descriptions of events, or
about 0.2% of the approximately 68,500 words in the work.  This factor strongly favored fair use, if the
“heart” of the work wasn’t infringed. 
Here, the “heart” of the work was unprotectable facts.  “Woodard’s writing style, which is the only
aspect of the Work producing protectable elements, although necessary to
production of the Work, was not the heart of the Work.”  A biographer’s writing style could maybe be
the “heart” of a biographical work “in an extreme case, for example where the
facts of the subject’s life were already known to the reader or mostly
uninteresting but where a highly skilled writer celebrated for his wit and
commentary had written the biography.” 
(I just finished Patricia Lockwood’s Priestdaddy,
which I think would qualify easily.)  But
that wasn’t the case here. There was no evidence that there was any market for Woodard’s
writing in and of itself; the attraction was the historical information he had
to convey.
The court considered transformation separately, and found
both a change of purpose and a change of character.  Purpose changed when the script, most of
which wasn’t from the work, was incorporated into musical performances in order
to entertain, whereas the purpose of the work was primarily to inform, to
vindicate DeVito’s perspective, and to reveal hidden truths. Even if the
purpose of the play were primarily to inform, the play would still have a
different character because it incorporated DeVito’s “singular” perspective “into
a more complete and balanced description of events based on competing
perspectives of all four band members.” 
In fact, the play was structured around this concept, with the four key characters
each in turn narrating the play from their own perspectives during the Spring,
Summer, Fall, and Winter portions of the play. 
The Four Seasons, get it?  This
additional creative expression was significantly transformative.
Thus, the first factor weighed against fair use “as in any
typical case of commercial use,” the second factor weighed in favor of fair
use, the third factor weighed “heavily” in favor of fair use, the fourth and
most important factor weighed heavily in favor of fair use, and the
transformative use “diminishes the significance of the sole factor weighing
against fair use.”  To permit a finding
of no fair use based solely on commerciality, when the other factors including
transformativeness favored fair use, “would be to impermissibly treat the first
factor as conclusive” and would hinder copyright’s purposes with respect to
biographical works.

If this were overturned on appeal, the court would still
grant a new trial on the issue of an implied nonexclusive license and on the
damages award.  The jury’s verdict on the
contribution of the copying of protected elements of the work to the play was
against the clear weight of the evidence. The 12 similarities considered by the
jury constituted approximately 0.4% of the playscript, which itself accounted
for less than half of the play’s running time, the rest of which was music. Assuming
that the music accounted for roughly half of the play’s success, a finding of
10% implied that the few words copied from the work accounted for roughly 20%
of the success of the play attributable to the dialogue. Although the jury’s
job is not to make a strict, mathematical calculation, the verdict must be
supported by sufficient evidence, and it wasn’t.  There was instead substantial evidence that
many additional elements contributed to the worldwide success and profits of
the play, including the additional inventive material in the script; the
stagecraft; the use of music; the employment of world-renowned writers,
directors, and producers; and advertising and promotion efforts. 

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