Can You Own The Story Of A Band?

from the isn't-copyright-grand? dept

Thu, Sep 4th 2008 8:53am — Mike Masnick

Here's a question for you: can someone own the copyright on the history of a musical group? We may find out as a lawsuit moves forward concerning the "ownership" of the story of a famous band. As you may know, there's been a popular musical called Jersey Boys about the history of the musical group The Four Seasons -- and now there's the inevitable argument over who gets to earn money from that musical.

The person suing is the widow of a lawyer/writer, Rex Woodard, and she's suing all of the band members, with a specific focus on Thomas Gatano DeVito. Woodard's husband knew the members of The Four Seasons and co-wrote a manuscript biography of DeVito. A copy of the manuscript with a copyright notice naming both Woodard and DeVito as authors of the biography was registered at the Copyright Office. However, the book itself was never published. Soon after the writing was completed, Woodard died. During the time Woodard was sick, apparently DeVito submitted a copy of the work to the Copyright Office again -- without Woodard's name on it. After Woodard died, totally unaware of DeVito's separate registration, Woodard's wife continued shopping the manuscript, but was unable to find a publisher.

The problem is that the Jersey Boys musical was apparently based partly on this unpublished manuscript, which would make the musical a derivative work. Various folks involved in the musical claim they derived inspiration from reading the manuscript. And, of course, Woodard's widow now wants the royalties from the successful musical. The complaint itself is long and detailed, but it does come back to a pretty basic question: should the story of a band be owned by someone? As we've noted in the past, movie studios often "buy" the rights to news stories for movies, even though there's no legal basis for it (you can't copyright "facts" and so a news story can't be owned by anyone). In theory, shouldn't the same thing be true concerning the story of a band and the various anecdotes of what happened to the band and its members?

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Filed Under: band, copyright, four seasons, jersey boys, ownership, rex woodard, story, thomas devito

27 Comments

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Sarah Palin, 4 Sep 2008 @ 9:44am

Fact
I can kick Chuck Norris' ass.
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Anonymous Coward, 4 Sep 2008 @ 10:18am

Copyright vs Plagerism in Academia
This same issue comes up in academia all the time.

In short, if it is plagerism there; it is copyright infringment here. (Assuming that of course the copyright is still valid)

You can say copyright is stupid all you want but when you use someone else's work, they should be given the proper credit for it. In academia it is just inclusion of the information. In the real world where someone is making money off the work, it is financial. But in both cases it is the same principle.
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Mike (profile), 4 Sep 2008 @ 10:22am

Re: Copyright vs Plagerism in Academia
This same issue comes up in academia all the time.

How?

In short, if it is plagerism there; it is copyright infringment here.

Um, no. Plagiarism and copyright are two separate things. Copyright has nothing to do with "credit."

You can say copyright is stupid all you want but when you use someone else's work, they should be given the proper credit for it.

That has nothing to do with copyright.
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Jim, 4 Sep 2008 @ 10:33am

Re: Copyright vs Plagerism in Academia
In the real world where someone is making money off the work, it is financial.

So? She isn't losing any money. If anything she should use the success of the musical to sell her otherwise worthless book.
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Carolyn Jewel, 4 Sep 2008 @ 11:11am

Missing the Point?
Of course you can't copyright facts. It's disingenuous to suggest that the issue here is ownership of the facts of the story. It's not. But you can copyright the mode of expression -- that is, a book about this band which her husband did write and which, according to this story, was used as the basis for the play.

If the authors of the play never saw the work in question there's no problem. But they did and they admit using it to write the play (if the facts are as stated) And that does open up the issue of copyright infringement.
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Anonymous Coward, 4 Sep 2008 @ 11:35am

Re: Re: Copyright vs Plagerism in Academia

This same issue comes up in academia all the time.

How?

So you are telling me that if I take someone else's work in either case, it is not the same? One is plagerism, the other copyright infringment; but both boil down to the same thing. Co-opting someone else's work for your own gain.

Explain how you don't see this?
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Anonymous Coward, 4 Sep 2008 @ 11:43am

Re: Re: Copyright vs Plagerism in Academia
Wow... Can I come to work where you do and tell the boss that everything we work on was all me, and claim all the credit? I mean you won't lose any money, right? Just someone else stealing credit for all your work. Just someone else taking your raises, and your promotions, etc. That doesn't matter to you, right? No, that would just be you being selfish like this old lady, huh? Now wouldn't it...
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Anonymous Coward, 4 Sep 2008 @ 11:44am

SO, DeVito actually did some actual sleeziness here. For that reason alone, I hope she gets good damages, but that's not a legal argument. Legally, I think it depends not so much on the facts portrayed(as obviously those are just facts, and non-copyrightable) but on how much of the actual words and phrasing of the original work is used. If the musical is using a good bit of lines from the manuscript, then I think that's obvious grounds.
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wasnt me!, 4 Sep 2008 @ 11:53am

facts and copyright
text books or school books are a presentation of fact, and they are copy righted.

the story of some1s life or in this case of a band are also facts.

if the musical is successful its not because its based on the facts in question but because of how those facts were interpreted and presented.

so unless the widow can prove the musical is what her husband wrote (therefore stolen) she should have no case.
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Jerm, 4 Sep 2008 @ 12:00pm

re: Missing the Point
Is it that simple? The biography an ostensibly true story woven around the facts of the person's life, right? So i imagine it would depends on that they gleaned from the book -- did they just use it as a fact reference or take away artistic license of the original author.
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JB, 4 Sep 2008 @ 12:07pm

Review
Jersey Boys played here in town, everyone who saw it said it was fantastic!
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Anonymous Coward, 4 Sep 2008 @ 12:09pm

Re: Re: Re: Copyright vs Plagerism in Academia
"So you are telling me that if I take someone else's work in either case, it is not the same? One is plagerism, the other copyright infringment; but both boil down to the same thing. Co-opting someone else's work for your own gain.

Explain how you don't see this?"

Actually, you don't see it correctly.

Plagiarism (not plagerism) is defined as the act of stealing literary work, ideas etc. and using them as your own work.

Copyright protects the product, work, idea from being distributed or copied without authorization.

In the example you gave, you plagerised the work by not referrencing the author, but you broke copyright infringement when you published your work without the copyright holders permission.

You're comparing apples to oranges.
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Carl, 4 Sep 2008 @ 12:43pm

Re: Missing the Point?
Thank you posting just about the only sensible comment so far. Techdirt's formulation of the question is completely bogus.

A biography is, almost by definition, an expression of the facts -- for example, determining what events mattered, what to include, what to leave out -- and requires actual work such as interviews or other original research. If they used that, she deserves a share of whatever money the derivative work makes. To argue otherwise makes as much sense as saying that she should be free to put on her own production of their musical -- after all, nobody owns the story, right?

I find Techdirt really interesting and thought-provoking about 80% of the time. But there are occasions where it is so hung up over copyright, it posts something just plain silly -- like this.
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Anonymous Coward, 4 Sep 2008 @ 12:44pm

You already know . . .
Whats going on here;

"As we've noted in the past, movie studios often "buy" the rights to news stories for movies, even though there's no legal basis for it (you can't copyright "facts" and so a news story can't be owned by anyone). In theory, shouldn't the same thing be true concerning the story of a band and the various anecdotes of what happened to the band and its members?"

Becuase the entertainment industry has historically "paid", people assume thier is money to be made . . . . money for nuthin.
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Thamios, 4 Sep 2008 @ 12:48pm

Copyright
I see where she's coming from. One piece of information that people have been neglecting is the fact that there WAS a copyright issued for the version of the manuscript that had BOTH of the names on it. While Woodard was sick, DeVito submitted a copy for a copyright with Woodards name nowhere on it. That is copyright infringement already.

Past that, it just remains to be seen how much of the musical is based on the manuscript.
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Anonymous Coward, 4 Sep 2008 @ 12:49pm

Re: Re: Re: Re: Copyright vs Plagerism in Academia
So co-opting someone else's work is not the actual act around which both are based?
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Valkor, 4 Sep 2008 @ 1:04pm

Re: Re: Copyright vs Plagerism in Academia
Clearly, you didn't read the article in the link, or the article that the linked article links to.

The issue is not someone trying to enforce a copyright claim on facts. The issue is that one party of a co-authorship (if that's even a word) is not being paid for the use of that book. Woodward and DeVito co-wrote the biography. DeVito sold rights to, and is being compensated for, the use of that book as a basis for the musical, but without acknowledging Woodward as a part of it. The "otherwise worthless book" is in fact the book for which DeVito is currently being paid.

I'm not sure why Mrs Woodward is suing the Four Seasons or the producers of Jersy Boys; it really seems like DeVito is the party who acted fraudulently, or at least in bad faith. She should take half of his cut and not involve the other creative parties at all.
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Mike (profile), 4 Sep 2008 @ 1:32pm

Re: Re: Re: Copyright vs Plagerism in Academia
So you are telling me that if I take someone else's work in either case, it is not the same? One is plagerism, the other copyright infringment; but both boil down to the same thing. Co-opting someone else's work for your own gain.

No, they are not the same. Copyright infringement is about making an unauthorized copy of the work. Plagiarism is about taking credit for work that was not done by you. You can do both at the same time, but they are very different animals.
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Anonymous Coward, 4 Sep 2008 @ 2:08pm

As we've noted in the past, movie studios often "buy" the rights to news stories for movies, even though there's no legal basis for it (you can't copyright "facts" and so a news story can't be owned by anyone). In theory, shouldn't the same thing be true concerning the story of a band and the various anecdotes of what happened to the band and its members?

While you can't copyright facts, you can copyright the particular expression of facts. This particular case, if the allegations in the complaint are true, seems pretty straightforward: DeVito had an agreement with Woodward about the book that Woodward wrote, but registered a copyright in his name only and then licensed derivative works based on that book to the play's producers. It's that document trail that seems damning.

As for studios buying rights to a news story, there are other issues beyond copyright--including forms of invasion of privacy and right of publicity--that make it easier and ultimately cheaper for them to pay for the rights.
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I'll be an Anonymous Coward today, 4 Sep 2008 @ 2:19pm

It's a good start...
Well we now know the answer to the ancient riddle: what's sleazier and more unlikable than a lawyer? Answer: a lawyer's widow.
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Jake, 4 Sep 2008 @ 3:48pm

Woodard died in 1991 prior to the book’s publication. Woodard’s widow continued to shop the book for a publisher with no success. In 2007, a search of the copyright office records revealed an identical manuscript was registered solely in the name of DeVito.

Emphasis mine. Is it just me, or does that sound a bit shady? Doubly so when you consider that DeVito apparently cut Woodward out of the picture whilst he was still alive, presumably without his knowledge or consent. The information might be an infinite good, but the time and effort involved in assembling it in this particular way is not, and it seems to me that Woodward should have had some say in what happened to his share of the proceeds from it in the event of his death. And DeVito's apparent attempt to pass off a joint project as his work alone is, at best, unseemly.
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Nasch, 4 Sep 2008 @ 3:52pm

Re: Re: Re: Re: Re: Copyright vs Plagerism in Academia
So co-opting someone else's work is not the actual act around which both are based?

Correct! Co-opting someone else's work (by which I assume you mean passing it off as your own) is plagiarism. This can occur whether or not you have the right to distribute the original work. Copyright infringement happens when you distribute a copyrighted work without permission. This can occur whether or not you attempt to claim the work as your own.

To sum up: co-opting -> plagiarism; distributing -> copyright infringement.

If this still doesn't make sense, I think someone else explained it a fifth time below.
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Tamara, 4 Sep 2008 @ 6:44pm

It depends
Often books/movies based on true stories, events, have many fictional events added or true events changed to make the book/movie more interesting. If this was one of them, and there are fictional events in the book being used in the musical then yes she should sue.
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Ima Nogood, 5 Sep 2008 @ 5:53am

Let's see, who else has money?
It seems to me that this complaint should be between Ms. Corbello and Mr. DeVito. Why was the complaint amended to include almost everyone associated with Jersey Boys?
MONEY.
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Tack Furlo, 5 Sep 2008 @ 8:48am

Amazon ordered to pay RIAA $4 Gazillion for Copyrighted Track Lists
Ok, so they haven't been...yet. If you can copyright the history of what a band did, what's to stop you from copyrighting the list of tracks on an album? What about copyrighting CD cover art? Can you imagine what would happen if these things were copyrighted, and the RIAA one day woke up and decided to sue everyone who displays track lists and cover art? Amazon would go down easily, since full track lists and cover art for every album they sell are freely visible there. So would anyone else that sells CDs. Hell, this could even apply to brick & mortar shops. Wal-mart wouldn't be turning a profit for a while since they do nothing to prevent you from looking at the CD without buying it. If this could be done, CDs would become like porn magazines - you know nothing but the artist and title until you buy it. Weather you like anything on the CD or not you'll never know until you've already paid for it. Anyone else see the problem here?

For that matter, if you can copyright a band's story then why not anyone's story? What's to stop you from copyrighting your own biography, or that of any distant relative, and thus preventing anyone else from writing anything about you. If you're the 165th great-great-2nd-cousin-once-removed of George Washington's brother in law then what's to stop you from saying he was a total dunce who founded Canada then died at the age of 12 and then copyrighting that as his biography, preventing anyone else from mentioning anything beyond his name at all?

I guess my point is that this is one of those cases where the slippery slope effect should be VERY heavily and thoroughly thought out. If you can copyright a band's history there is no limit to what you can claim the sole right to print over, and freedom of the press ceases to exist as we know it outright. Do we really want to give that freedom up in exchange for a few extra bucks from a Broadway show? Are our basic unalienable rights for sale that cheaply? Think about it.
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Anonymous, 7 Sep 2008 @ 9:31am

Re: Let's see, who else has money?
According to the Amended Complaint itself, it was amended because Corbello discovered in July 2008 that Mr. DeVito issued an exclusive license in the book to the Four Seasons, who then licensed it to all the others, when a co-author actually does not have the right to issue exclusive licenses to anyone. If true, that would mean that none of the other parties had the right to use Mr. Woodard's book based on DeVito's permission.
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Anonymous, 7 Sep 2008 @ 9:34am

Re: Amazon ordered to pay RIAA $4 Gazillion for Copyrighted Track Lists
CD cover art most certainly is copyrightable. Copyrights protect graphical works. Also, you most certainly can copyright your own biography and anyone else's -- that you write! Copyright protects the writings of an author no matter what he or she is writing about. This is not the same thing as copyrighting a "life story" -- the copyright covers what the author wrote.
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