No. _____
`
`IN THE
`Supreme Court of the United States
`
`DONNA CORBELLO,
`
`Petitioner,
`
`v.
`FRANKIE VALLI, ET AL.,
`Respondents.
`
`On Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Ninth Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`GREGORY HARRIS GUILLOT
`Counsel of Record
`GREGORY H. GUILLOT, P.C.
`2626 Cole Ave., Suite 300
`Dallas, TX 75204
`(972) 888-6072
`gregory@guillot-law.com
`
`Attorney for Petitioner
`
`April, 2021
`
`PRESS OF BYRON S. ADAMS g WASHINGTON, D.C. g 1-800-347-8208
`
`
`
`IN THE
`Supreme Court of the United States
`
`DONNA CORBELLO,
`
`Petitioner,
`
`v.
`FRANKIE VALLI, ET AL.,
`Respondents.
`
`On Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Ninth Circuit
`
`PETITION FOR WRIT OF CERTIORARI
`
`GREGORY HARRIS GUILLOT
`Counsel of Record
`GREGORY H. GUILLOT, P.C.
`2626 Cole Ave., Suite 300
`Dallas, TX 75204
`(972) 888-6072
`gregory@guillot-law.com
`
`Attorney for Petitioner
`
`April, 2021
`
`PRESS OF BYRON S. ADAMS g WASHINGTON, D.C. g 1-800-347-8208
`
`
`
`i
`
`QUESTIONS PRESENTED
`
` 1. Whether the century-old equitable doctrine of
`copyright estoppel, which states that, once a work has
`been held out to the public as entirely factual, an
`author-plaintiff cannot later claim it is actually fiction,
`and entitled to the higher protection accorded fictional
`works, may be invoked to deny protection to original
`expression in an unpublished biography, for which no
`such public claims have been made.
`
` 2. Whether the Ninth Circuit’s newly-adopted
`“asserted truths doctrine,” which: modifies copyright
`estoppel by rejecting its equitable basis; is grounded,
`instead, in U.S. Const. art. 1, § 8, cl. 8; and, denies
`protection to narrative expression and original dialogue
`in unpublished historical works, in addition to facts and
`ideas, conflicts with the purposes of the Copyright
`Clause, the Copyright Act of 1976, and this Court’s
`decisions in Harper & Row, Publrs. v. Nation Enters.,
`471 U.S. 539 (1985), and Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340 (1991); encroaches upon an
`author’s right of first publication; and departs from
`traditional principles of equity unduly.
`
` 3. Whether the Ninth Circuit’s decision, in holding
`that an author’s first written account of his own prior
`remarks, and subjective characterizations of public
`figures are unprotected by copyright, directly conflicts
`with this Court’s decisions in Harper & Row and Feist.
`
` 4. Whether paraphrasing and adapting original
`expression from an unpublished biography infringes
`copyright unless excused by fair use.
`
`
`
`ii
`
`PARTIES TO THE PROCEEDINGS BELOW
`
`Petitioner, Donna Corbello, was the plaintiff in
`the district court and appellant in the court of appeals.
`
`Respondents Frankie Valli, Robert J. Gaudio,
`Marshall Brickman, Eric S. Elice, Des McAnuff,
`Michael S. David, DSHT, Inc., FKA Dodger Stage
`Holding Theatricals, Inc, Dodger Theatricals, Ltd., JB
`Viva Vegas, LP, Jersey Boys Broadway Limited
`Partnership, Skunk, Inc., and Getting Home, Inc., were
`defendants in the district court and appellees in the
`court of appeals.
`
`RULE 29.6 NOTATION
`
`Petitioner is an individual, with no parent
`corporation, stock, or shareholders.
`
`RELATED PROCEEDINGS
`
`There are no other proceedings in any court that
`are directly related to this case.
`
`
`
`iii
`
`TABLE OF CONTENTS
`
`QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . i
`
`PARTIES TO THE PROCEEDINGS BELOW. . . . .
`
`RULE 29.6 NOTATION . . . . . . . . . . . . . . . . . . . . . .
`
`RELATED PROCEEDINGS. . . . . . . . . . . . . . . . . . .
`
`ii
`
`ii
`
`ii
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . vi
`
`OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED . . . . . . . . . . . . . . 2
`
`INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 7
`
`A.
`B.
`C.
`D.
`E.
`
`Factual Background . . . . . . . . . . . . . . 7
`District Court Proceedings . . . . . . . . 19
`The First Appeal . . . . . . . . . . . . . . . . 20
`Proceedings Upon Remand. . . . . . . . 21
`The Ninth Circuit’s Decision . . . . . . 23
`
`REASONS FOR GRANTING THE WRIT . . . . . . . 25
`
`
`
`I.
`
`iv
`
`The Ninth Circuit’s Newly-Adopted “Asserted
`Truths Doctrine” Departs from Traditional
`Principles of Equity; Decides
`Important
`Questions of Federal Law Which Should Be
`Settled By This Court; and Conflicts with
`Relevant Decisions of Other Circuits and This
`Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`A.
`The Purposes of Copyright Law,
`Traditional Contours of Copyright
`Protection, and the First Amendment
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`The Equitable Doctrine of Copyright
`Estoppel. . . . . . . . . . . . . . . . . . . . . . . 28
`The Ninth Circuit’s “Asserted Truths
`Doctrine,” and
`Its Constitutional,
`Statutory, and Common Law Defects
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
`1.
`The Asserted Truths Doctrine’s
`Treatment of Dialogue Creates a
`Conflict with the Tenth Circuit and
`Tensions with This Court. . . . 34
`
`B.
`
`C.
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
`
`APPENDICES
`
`APPENDIX A
`Ninth Circuit Opinion
`(Sept. 8, 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
`
`APPENDIX B
`District Court Opinion
`(Jun. 13, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33a
`
`
`
`v
`
`APPENDIX C
`District Court Opinion
`(Nov. 17, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 80a
`
`APPENDIX D
`District Court Opinion
`(Sept. 29, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 84a
`
`APPENDIX E
`Ninth Circuit Opinion in Earlier Appeal
`(Feb. 10, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 120a
`
`APPENDIX F
`Ninth Circuit Order Denying Rehearing
`(Nov. 13, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 152a
`
`APPENDIX G
`Statutory Provisions Involved . . . . . . . . . . . . . . . 153a
`
`17 U.S.C. § 101. . . . . . . . . . . . . . . . . . . . . . 153a
`17 U.S.C. § 102. . . . . . . . . . . . . . . . . . . . . . 155a
`17 U.S.C. § 106. . . . . . . . . . . . . . . . . . . . . . 156a
`17 U.S.C. § 107. . . . . . . . . . . . . . . . . . . . . . 157a
`17 U.S.C. § 204. . . . . . . . . . . . . . . . . . . . . . 158a
`17 U.S.C. § 501. . . . . . . . . . . . . . . . . . . . . . 158a
`
`
`
`vi
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`American Tobacco Co. v. Werckmeister, 207 U.S. 284
`(1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`
`Arica Inst., Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`
`Bonito Boats v. Thunder Craft Boats, 489 U.S. 141
`(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`
`Cooley v. Penguin Grp. (USA) Inc., 31 F. Supp. 3d 599
`(S.D.N.Y. 2014), as corrected (July 14, 2014) . . . . 32
`
`Corbello v. DeVito, 2015 U.S. Dist. LEXIS 132726 (D.
`Nev. September 29, 2015) (unreported). . . . . . . . . . 1
`
`Corbello v. DeVito, 2016 U.S. Dist. LEXIS 184860 (D.
`Nev. November 17, 2016) (unreported) . . . . . . . . . . 1
`
`Corbello v. DeVito, 262 F.Supp. 3d 1056 (D. Nev. 2017)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`
`Corbello v. DeVito, 777 F.3d 1058 (9th Cir. 2015) . . 1
`
`Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020) . . . . 1
`
`Davies v. Bowes, 209 F.53 (S.D.N.Y. 1913) . . . . . . 30
`
`eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
`
`
`
`vii
`
`Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273
`(S.D.N.Y. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`Eldred v. Ashcroft, 537 U.S. 186 (2003). . . . . 4, 26, 27
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340
`(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 3, 7, 25, 28
`
`Golan v. Holder, 565 U.S. 302 (2012). . . . . . . 4, 25-27
`
`Greenbie v. Noble, 151 F. Supp. 45 (D.N.Y. 1957)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539
`(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 3-7, 25-28
`
`Harris v. Miller, 50 U.S.P.Q. 306, (S.D.N.Y. 1941)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`
`Houts v. Universal City Studios, Inc., 603 F.Supp. 26
`(C.D. Cal. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`Hughes v. Fox Broad. Co.,2007 U.S. Dist. LEXIS
`117783 (W.D. Mo. Oct. 10, 2007) . . . . . . . . . . . . . . 31
`
`Jacobsen v. Deseret Book Company, 287 F.3d 936 (10th
`Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 35
`
`Marshall v. Yates, 1983 U.S. Dist. LEXIS 12305 (C.D.
`Cal. Oct. 26, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 31
`
`Nash v. CBS, Inc., 691 F. Supp. 140 (N.D. Ill. 1988)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`
`
`
`viii
`
`Nester's Map & Guide Corp. v. Hagstrom Map Co., 796
`F. Supp. 729 (E.D.N.Y. 1992). . . . . . . . . . . . . . . 29, 31
`
`Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1
`(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`
`Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663
`(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 33
`
`Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.
`1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`
`Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.D.C.
`1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
`
`Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
`
`Wooley v. Maynard, 430 U.S. 705 (1977) . . . . . . . . 27
`
`Constitution:
`
`U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . 2, 4, 26
`
`U.S. Const. art. 1, § 8, cl. 8. . . . . . . . . . . i, 4, 5, 24, 26
`
`Federal Statutes:
`
`17 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
`
`17 U.S.C. § 102(b). . . . . . . . . . . . . . . . . . . . . . . . . . 26
`
`17 U.S.C. § 106(3). . . . . . . . . . . . . . . . . . . . . . . . . . 27
`
`
`
`ix
`
`17 U.S.C. § 107 . . . . . . . . . . . . . . . . . . . . . . . . 4, 27, 28
`
`28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541
`(1976) (codified at 17 U.S.C. §§ 101, et seq.) . . . . . . 2
`
`Other Authorities:
`
`1 Nimmer on Copyright § 2.11(c). . . . . . . . . . . . . . 29
`
`1-2 Nimmer on Copyright § 2.11[C] . . . . . . . . . . . . 32
`
`Sup. Ct. R. 29.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
`ii
`
`William F. Patry, 2 Patry on Copyright § 4:8 (Sept.
`2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`
`
`1
`
`Petitioner respectfully petitions for a writ of
`certiorari to review the judgment of the United States
`Court of Appeals for the Ninth Circuit in this case.
`
`OPINIONS BELOW
`
`The opinion of the court of appeals is reported at
`974 F.3d 965, and reproduced in Appendix (App.) A.
`(App. 1a-32a). The opinion and order of the district
`court, vacating three of five verdicts, and entering
`judgment as a matter of law, is reported at 262 F.Supp.
`3d 1056, and reprinted in Appendix B. (App. 32a-79a).
`An earlier order of the district court, entering
`judgment as a matter of law for two respondents, is
`unreported, but available at 2016 U.S. Dist. LEXIS
`184860, and reproduced in Appendix C. (App. 80a-83a).
`A previous opinion by that court is unreported, but
`available at 2015 U.S. Dist. LEXIS 132726, and
`reprinted in Appendix D. (App. 84a-119a).
`
`The earlier opinion of the court of appeals cited
`in the judgment is reported at 777 F.3d 1058, and
`reproduced in Appendix E. (App. 120a-151a).
`
`JURISDICTION
`
`The judgment of the court of appeals was
`entered on September 8, 2020. (App. 1a). A petition for
`panel rehearing and rehearing en banc was denied on
`November 13, 2020, by the order reproduced in
`Appendix F. (App. 152a). On March 19, 2020, this
`Court, by general order, extended the deadline to
`petition for a writ of certiorari to 150 days from the
`date of the lower court judgment, or order denying a
`
`
`
`2
`
`timely petition for rehearing. The jurisdiction of this
`Court is invoked under 28 U.S.C. § 1254(1).
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`
`Article 1, Section 8 of the United States
`Constitution provides, in relevant part: “[The Congress
`shall have Power . . . ] 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 . . . .” U.S. Const.
`art. I, § 8, cl. 8.
`
`The First Amendment to the United States
`Constitution provides, in pertinent part: “Congress
`shall make no law . . . abridging the freedom of speech
`. . . .” U.S. Const. amend. I.
`
`The relevant provisions of the Copyright Act of
`1976, as amended, Pub. L. No. 94-553, 90 Stat. 2541
`(1976) (codified at 17 U.S.C. §§ 101, et seq.), are
`reprinted in Appendix G. (App. 153a-158a).
`
`INTRODUCTION
`
`The Ninth Circuit’s decision in this case,
`involving unlicensed appropriations of expression from
`an unpublished autobiography, for the stageplay,
`Jersey Boys, not excused by fair use, creates and
`deepens division among the circuits concerning: the
`scope of copyright protection in historical and factual
`narratives, and extent to which expressive language in
`such works may be copied, paraphrased, or adapted to
`
`
`
`3
`
`disseminate underlying facts; the treatment of fictional
`elements
`in otherwise factual works,
`including
`reconstructed or fictitious dialogue in biographical
`memoirs; and, the extent to which an author’s right of
`first publication protects against appropriations of
`expression in unpublished memoirs, when fair use does
`not apply. The decision also directly conflicts with this
`Court’s decisions in Harper & Row, Publrs. v. Nation
`Enters., 471 U.S. 539 (“Harper & Row”) and Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340
`(“Feist”), by denying copyright protection to expression
`held protected in Harper & Row, and expression
`satisfying the constitutional and statutory “originality”
`requirement elucidated in Feist.
`
`Most of these conflicts flow from the Ninth
`Circuit’s adoption of a newly-coined principle of federal
`common law for this case: the “asserted truths
`doctrine,” which is triggered by an author’s assertions
`within or concerning a work that its accounts are
`truthful, and then treats its expression, including
`narratives about facts, as unprotectable fact, excluded
`from copyright. Though inspired by the century-old
`equitable doctrine of “copyright estoppel,” stating that,
`once a work has been held out to the public as entirely
`factual, an author-plaintiff cannot later claim it is
`actually fiction, and entitled to the higher protection
`accorded fictional works, the asserted truths doctrine
`materially differs from copyright estoppel in rationale
`and application. First, it rejects the equitable
`underpinnings of copyright estoppel entirely, despite
`this Court’s warnings against departures from long
`traditions of equity practice, e.g., Weinberger v.
`Romero-Barcelo, 456 U.S. 305, 320 (1982), and is
`
`
`
`4
`
`grounded instead in the Copyright Clause, as a means
`of promoting the “Progress of Science.” Second, there is
`no requirement that its triggering assertions be made
`“to the public,” and unlike copyright estoppel, the
`asserted truths doctrine applies to unpublished works.
`Third, while copyright estoppel may preclude an
`author-plaintiff from claiming an account is fictitious,
`it does not place narrative expression in the public
`domain. The asserted truths doctrine can, and did in
`this case.
`
`These differences alter the traditional contours
`of copyright protection in ways reserved for Congress,
`see Eldred v. Ashcroft, 537 U.S. 186, 212-213 (2003),
`shifting the delicate balance Congress struck between
`the rights of authors in their original expression, and
`public access to their works. Id. The Copyright Act
`accommodates First Amendment rights through the
`idea/expression dichotomy and fair use, Golan v.
`Holder, 565 U.S. 302, 327-29 (2012), including the
`negative free speech rights embodied in the right of
`first publication, which gives authors exclusive control
`over their works while grooming them for public
`dissemination, and the right to choose when, how, and
`whether to publish. Harper & Row, 471 U.S. at 554-
`555, 560. Under this scheme, original expression is
`protected, before and after publication, subject only to
`fair use. Id. at 548; 17 U.S.C. § 107. The asserted truths
`doctrine subverts this, by reclassifying provably
`original expression as fact, and permitting its
`appropriation from unpublished works without fair use.
`Moreover, it does so based on an objective under the
`Copyright Clause that Congress did not select.
`
`
`
`5
`
` The equitable nature of copyright estoppel may
`permit its limited interventions, to avoid unfairness in
`a particular case. See Petrella v. Metro-Goldwyn-Mayer,
`Inc., 572 U.S. 663, 688 (2014) (Breyer, J., dissenting).
`But the Ninth Circuit’s asserted truths doctrine has no
`equitable foundation, not only raising questions
`regarding its authority, but also producing inequitable
`and conflicting results. Here, statements in a draft,
`unpublished manuscript, which had not been fully
`vetted and edited for publication, or even formally
`approved by its co-author/subject; was maintained in
`confidence; had not been spoken of publicly; and, was
`appropriated through deception, produced a judgment
`that the work is “entirely true,” and a drastic,
`“estoppel-type” remedy, without the misconduct for
`which such estoppel is normally imposed.1 The court
`used the doctrine to eliminate half of the similarities
`considered; hold that the work’s subjective portraits of
`real persons are unprotected, conflicting with this
`Court’s contrary holding in Harper & Row, 471 U.S. at
`563; and rule that reconstructed and fictitious dialogue
`in biographical works is unprotected, placing the Ninth
`Circuit in conflict with the Tenth,2 and in tension with
`this Court’s treatment of an author’s first written
`account of his own prior remarks. Id. at 566, n. 8.
`
`These outcomes thwart the national uniformity
`that is a primary purpose of the Copyright Clause.
`
`1 Indeed, the subject statements may never have
`appeared in the published text, or, may have been prefaced by a
`disclaimer.
`
`2 See Jacobsen v. Deseret Book Co., 287 F.3d 936, 947
`(10th Cir. 2002).
`
`
`
`6
`
`Bonito Boats v. Thunder Craft Boats, 489 U.S. 141, 162
`(1989). And no court in any other circuit has adopted
`this doctrine, or applied copyright estoppel, its sibling,
`in this way.3 Only this Court can resolve the circuit
`conflict, enforce its prior decisions, and clarify whether
`either “asserted truths” or copyright estoppel may be
`invoked against unpublished works.
`
`The Ninth Circuit’s decision also squarely raises
`long-elusive issues concerning the scope of copyright
`protection for historical narrative works, including
`whether they are protected against paraphrasing and
`adaptation, as well as the verbatim copying proscribed
`in Harper & Row. Most remaining similarities between
`the respective works which the lower court held did not
`concern protected elements of petitioner’s work, were
`dismissed on grounds that they involved only “ordinary
`phrases.” But closer examination reveals that more was
`taken, even where only short phrases were reproduced
`verbatim. These larger passages should be protected
`where they display, “as a whole, a sufficient degree of
`creativity as to sequence of thoughts, choice of words,
`emphasis, and arrangement . . . .” Salinger v. Random
`House, Inc., 811 F.2d 90, 98 (2d Cir. 1987).
`
`3Notably, had the asserted truths doctrine, or the Ninth
`Circuit’s construction of copyright estoppel, been applied in
`Harper & Row, the outcome would have differed. President
`Ford’s unpublished memoir was held out as entirely factual,
`promising “‘significant hitherto unpublished material’ concerning
`the Watergate crisis, Mr. Ford's pardon of former President
`Nixon and ‘Mr. Ford's reflections on this period of history, and
`the morality and personalities involved.’” Harper & Row, 471
`U.S. at 542. Yet, copyright estoppel was not applied, and its
`expression was protected, even against fair use.
`
`
`
`7
`
`These issues are not novel; are of tremendous
`importance to authors and publishers of expressive
`nonfiction works, and the need for guidance has long
`been noted,4 including by the Court itself. In Harper &
`Row, this Court acknowledged that “in the realm of
`factual narrative, the law is currently unsettled
`regarding the ways in which uncopyrightable elements
`combine with the author’s original contributions to
`form protected expression.” 471 U.S. at 548. Later, in
`Feist, it provided a partial clarification: “no one may
`claim originality as to facts,” which “do not owe their
`origin to an act of authorship,” 499 U.S. at 347, but
`factual compilations may be entitled to “thin”
`protection for a compiler’s original selection and
`arrangement of facts. Id. at 349. But the scope of
`protection for more expressive factual works, including
`“elegantly written biographies,” Harper & Row, 471
`U.S. at 563, remains uncertain. This case is an ideal
`vehicle for resolving that uncertainty at last, and the
`petition for certiorari should be granted.
`
`STATEMENT OF THE CASE
`
`A.
`
`Factual Background
`
`1. Petitioner is the widow of Rex Woodard, an
`attorney, author, and fan of the Four Seasons, who died
`in May 1991. Shortly before his death, in January 1991,
`Woodard completed a “rough manuscript” about the
`group, and its co-founder, Tommy DeVito (“the Work”),
`
`4 E.g., Jacobsen, 287 F.2d at 948 (noting, concerning the
`paraphrasing of expression in biographies, that “the Supreme
`Court has not settled this issue.”).
`
`
`
`8
`
`under an agreement entered with DeVito in 1988 for
`his autobiography. The agreement provided Woodard
`would do “all of the actual writing,” based on taped
`interviews and “any other relevant information that
`would benefit the book,” but the two would be “shown
`as co-authors,” and DeVito would have “exclusive
`control over the final text.” CA9 Br. 3-4.5 The Work is
`a 275-page, first-person narrative, in DeVito’s “voice,”
`with 222 pages devoted to the Four Seasons. Id. at 4.6
`
`In late-1990, before completing the Work,
`Woodard wrote prospective publishers, providing an
`outline. The “pitch” was that the Work would reveal
`the group’s previously undisclosed ties to organized
`crime, and criminal histories for certain band members,
`including DeVito, who had lied about their ages in the
`1960's to appeal to teens, and conceal “missing years”
`spent in prison. Id.; ER10844-10860. The letters
`requested “discretion,” because “key individuals” in the
`Work “remain unaware of its existence,” and did not
`include copies of the Work itself. ER10846; CA9 Rep.
`Br. 15-16. When this failed to generate interest,
`Woodard contacted two prospective literary agents, in
`late-January 1991, and sent both copies of the Work,
`but each declined; returned the copies; and Woodard
`died shortly thereafter. CA9 Br. 4; ER10874-10879.
`
`5 Docket entries in Ninth Circuit Appeal No. 17-16337
`are cited “R__.” References to petitioner’s Opening Brief, at R49-
`1, are cited “CA9 Br. __.” References to her Reply Brief, at R107,
`are cited “CA9 Rep. Br. __.” References to petitioner’s Excerpts of
`Record in the lower court are cited “ER__.”
`
`6 The cover page for the draft manuscript read, “Untitled
`Tommy DeVito/Four Seasons Biography.” ER12001.
`
`
`
`9
`
`Petitioner inherited Woodard’s rights in the
`Work, and continued to seek a publisher after his
`death, with his sister, Cindy Ceen, using the same form
`letter Woodard had employed. Mrs. Ceen dispatched 10
`such letters over a 12-to-13-year period. The number
`petitioner sent
`is uncertain, but many were
`misaddressed and “returned to sender,” because she
`used an outdated address list that Woodard had
`prepared. CA9 Rep. Br. 16. None included copies of the
`Work. These efforts were unsuccessful, and the Work
`remains unpublished. CA9 Br. 4.
`
`Few were aware of the Work, or Woodard’s
`authorship thereof during his lifetime, and neither he,
`petitioner, nor Mrs. Ceen made public statements
`regarding it before this action was filed. Nor did DeVito
`discuss the Work publicly, or make public claims of
`truthfulness. ER10443-10444. Like Woodard, DeVito
`considered the Work a draft that was “never finished,”
`CA9 Br. 5, and, he had not approved its “final text” per
`the 1988 agreement, which was one of several barriers
`to petitioner’s publication of the Work in its existing
`form. In fact, in 2005, through his attorney, DeVito
`rebuffed Mrs. Ceen’s renewed attempts to elicit his
`cooperation, telling her the Work was “not saleable.”
`(App. 4a).
`
`DeVito registered the Work with the Copyright
`Office in January 1991, shortly before Woodard’s death,
`but solely in his name, without advising Woodard. The
`deposit copy for his application was the manuscript
`typed by Woodard’s secretary, but the title page
`differed, and Chapter 41 was missing page 264 (App.
`40a), which included harsh criticisms of Frankie Valli.
`
`
`
`10
`
`ER13048. (See also App. 5a). On July 3, 2007, the
`registration was corrected, adding Woodard as co-
`author and co-claimant. Id.; CA9 Br. 4.
`
`2. Contrary to foundational assertions in the
`Ninth Circuit’s decision, the Work, as registered with
`the Copyright Office; used by respondents; and shown
`to the jury, does not include the cited representations of
`truthfulness on which the decision is based. The only
`page of the Work where the words, “a complete and
`truthful chronicle of the Four Seasons” (App. 4a, 21a)
`appear, and the cited references to DeVito’s “candor”
`(App. 4a), is page 264 – the page missing from the Work
`as registered by DeVito and petitioner. See ER13048.7
`This page was also missing from the “Defendants’
`Copy” of the Work, see infra, p. 14, and respondents did
`not see it. ER5549. Consequently, the district court
`withheld it from the jury, permitting jurors to review
`only the registered version in Trial Exhibit 15. ER5549-
`5551; ER1412.8
`
`Moreover, the Work is not entirely factual, due,
`in part, to the circumstances surrounding its creation.
`Although DeVito provided interviews to Woodard, and
`
`7 The decision states this appears “[a]t the outset of the
`Work” (App. 4a), but it is eleven pages from the end.
`
`8 The Prologue quotes from a mailgram sent to DeVito
`upon his induction into the Rock and Roll Hall of Fame, and
`DeVito wonders whether he would have received it, if “they knew
`the whole story.” ER12002. It may be inferred that this is a
`reference to his criminal history, rather than a claim that the
`Work is “entirely true,” and it is not cited as an assertion on
`which the decision is based.
`
`
`
`11
`
`taped stories for the Work, he had little familiarity
`with the manuscript, because he did no “actual
`writing,” and Woodard died so soon after completing
`his draft. At his deposition, used as his trial testimony,
`DeVito admitted the Work was not something he had
`read numerous times;9 knew little about its structure
`or content; and, denied making statements the Work
`recounts, which would later surface in Jersey Boys.
`CA9 Br. 5; ER5002. The Work was never vetted, line-
`edited, or groomed for publication, CA9 Br. 5, and
`includes errors, as well as fictional accounts. CA9 Br. 6-
`7; CA9 Rep. Br. 33-34.
`
`Woodard also invented dialogue, as is customary
`for such works, according to a former editor of Time
`magazine at trial. Id. A notable example concerns the
`Four Seasons’ hit, “Walk Like a Man.” CA9 Br. 5-6. In
`Woodard’s interview with DeVito about the song,
`DeVito said he liked the music, but “couldn’t
`understand the lyric,” explaining:
`
`I thought that was . . . the winner right there.
`Walk Like a Man itself, I don't know. You know,
`I'm saying, Walk Like a Man, Walk Like a Man.
`Whoever said the saying Walk Like a Man?
`Nobody. I never heard anybody say Walk Like a
`Man, you know? Or act like a man or something
`else, but not Walk Like a Man. Or have I been
`walking like a girl lately?
`
`9DeVito’s primary exposure to the manuscript occurred
`during a cross-country drive, when his wife read it aloud in the
`car. ER5046-5047.
`
`
`
`12
`
`ER6379. In the Work, Woodard transformed these
`feelings into an exchange with Gaudio, which never
`actually occurred:
`
`“What's the name of your new hit, Bobby?”
`“Walk Like A Man.” “Walk Like A Man? As
`opposed to what -- like a woman?” “No, no,”
`explains Gaudio defensively, “the song is
`directed to teenage boys who need to walk and
`talk like men.” “In other words, instead of like
`girls?” “No! Instead of like boys. This song is
`going to serve as an anthem for every teenage
`boy who has let some girl twist him around her
`little finger!”
`
`CA9 Br. 5-6, 19; CA9 Rep. Br. 26.10 Woodard also
`invented dialogue for the Work’s accounts of a faked
`murder in Valli’s car, and the band’s induction into the
`Rock Hall of Fame. CA9 Br. 6. And, the Work contains
`“internal dialogue” in which the thoughts of DeVito and
`others are quoted or described. Finally, it includes
`DeVito’s subjective descriptions of himself and others,
`including Valli, Gaudio, actor Joe Pesci, Valli’s first
`wife Mary, and Four Seasons member, Nick Massi. Id.
`
`Respondents Valli and Gaudio have also
`confirmed numerous fictions in the Work, including
`stories about DeVito’s intercession with a probation
`officer at the behest of Valli’s mother, when Valli was
`
`10The Ninth Circuit’s decision incorrectly states that the
`parties do not dispute this conversation actually happened. (App.
`31a). That has always been disputed, including by DeVito, who
`testified he had no recollection of it, and did not even know what
`“anthem” means. CA9 Br. 6.
`
`
`
`13
`
`arrested as a teen; Valli’s performances with the
`Variety Trio, for which the Work claims he knew only
`one song; and Gaudio’s depiction as a naive virgin at an
`orgy thrown by a record company. CA9 Br. 6-7.
`
`A compendium of fictional and erroneous
`accounts in the Work, with additional examples,
`appears in Volume 41 of petitioner’s Excerpts of Record,
`at ER10436-10441.
`
`3. In 1999, DeVito and Nick Massi signed an
`agreement with Valli/Gaudio for a stageplay based on
`the Four Seasons. The agreement conveyed rights in
`their names, likenesses, “biographies,” and other
`“materials,” including derivative works rights. But it
`also included a reversionary clause, under which these
`conveyances were withdrawn, if the first producer’s
`contract lapsed, and an agreement with a second was
`not executed within a specified period of time. The
`parties stipulated at trial that these rights did revert
`to DeVito, on December 10, 2004. CA9 Br. 8. Because
`neither DeVito nor Valli/Gaudio believed
`the
`agreement covered the Work, of which Valli/Gaudio
`were not yet aware, the rights conveyed were never
`exercised before the lapse. Id. at 8-9.11
`
`In mid-2003, the proposed Four Seasons play
`still remained undeveloped, despite efforts that had
`begun in 1999. But by early-2004, talks had became
`more serious between writers, Rick Elice and Marshall
`Brickman, director Des McAnuff, and producer Michael
`
`11 The facts in this paragraph are relevant only to an
`understanding of the first Ninth Circuit appeal.
`
`
`
`14
`
`David, and McAnuff suggested that the existing,
`highly-fictionalized “treatment” for the play, called “Oh
`What a Night!,” be replaced with an attempt to relate
`the band’s history. All agreed, and the play was
`reconceived between January and April 2004. CA9 Br.
`9-10.
`
`4. McAnuff also suggested that they contact
`DeVito, which Brickman did on January 19, 2004.
`During this conversation, DeVito expressed concern
`about the way his friend, mobster, Ray DeCarlo, might
`be portrayed in the play; told Brickman of the Work;
`and offered to lend him a copy, so he could “flip through
`it” for information about DeCarlo’s relationship with
`DeVito’s family. But DeVito insisted that Brickman use
`it only for that purpose; return it immediately; not
`share it with anyone, including Elice; and not copy or
`circulate it. At deposition, Brickman testified he was
`aware of these restrictions. At trial, he backtracked,
`calling DeVito “naive” if he thought Elice would not see
`the Work. CA9 Br. 11.
`
`Shortly before the Work arrived, McAnuff
`scheduled the inaugural planning meeting for the play
`– “a day in front of a bulletin board with index cards,”
`to “start constructing an outline” – and he appointed
`Elice to copy from the Work. ER4358-4360, 10960.
`When delivered, between January 23 and January 27,
`2004, Brickman gave it to Elice, who made copies,
`keeping one, ER13071 (“the Defendants’ Copy”),
`sending McAnuff another, and returning the original to
`Brickman for DeVito, who was unaware of this copying.
`Elice then mined the Work, marking almost 100 pages,
`and writing notes, such as, “That’s a scene!,” and
`
`
`
`15
`
`“Scene,” in the margins. He also copied the Work’s
`verbiage onto notecards for the planning meeting, and
`the c
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