Donna Corbello v. Frankie Valli

Opinion by Judge O’SCANNLAIN; Concurrence by Judge SACK.

OPINION

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a Broadway musical stage play also constitutes a transfer of a copyright ownership interest in that individual’s unpublished autobiography.

I

A

In 1988, Rex Woodward, a lawyer, journalist, and “Four Seasons” devotee, entered into a written agreement to ghostwrite the autobiography (the “Work”) of Thomas DeVito, one of the original members of the band (later known as “Jersey Boys”). Pursuant to this agreement, Woodward and DeVito would split the proceeds from publishing or otherwise exploiting the manuscript. After completing the Work but before securing publication, Woodward succumbed to lung cancer in 1991. Unbeknownst to Woodward’s widow and heir, Donna Corbello, DeVito had registered the Work with the U.S. Copyright Office solely under his own name in 1991, four months before Woodward’s death.

In 1999, DeVito and another former Four Seasons band member, Nicholas Macioci, executed an agreement (the “1999 Agreement”) with, two of their former bandmates, Frankie Valli and Bob Gaudio. Pursuant to this…

Concurrence by JUDGE SACK.

concurring

in the judgment:

I agree that we must remand this case to the district court for further proceedings. I disagree, however, that the word “biographies” in the 1999 Agreement unambiguously includes the manuscript of the autobiography of DeVito ghost written by Corbello’s decedent Woodward for DeVito (“the Work”), completed some eight years earlier, and that the 1999 Agreement therefore transferred certain derivative rights in the Work to the counter-parties to the Agreement — Valli and Gaudio. First, I would conclude that the language is ambiguous under New York law and remand on that basis for the district court to decide as a matter of fact whether the 1999 Agreement included a transfer of rights with respect to the ghost-written autobiography. But second, even if the 1999 Agreement unambiguously transfers DeVito’s interest in the Work, I think Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir.2008), compels us to conclude that the transfer effected only a nonexclusive, rather than an exclusive, li *1069 cense to use the Work for “the creation of a musical stage play.”

I

The majority offers a plausible — but not the only…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNA CORBELLO, No. 12-16733 Plaintiff Appellant, D.C. No. v. 2:08-cv-00867-

RCJ-PAL

THOMAS GAETANO DEVITO,

Defendant,

and

FRANKIE VALLI; ROBERT J. GAUDIO;

MARSHALL BRICKMAN; ERIC S.

ELICE; DES MCANUFF; DSHT, INC.,

FKA Dodger State Holding Theatricals, Inc.; DODGER

THEATRICALS, LTD.; JB VIVA

VEGAS, LP; MICHAEL S. DAVID;

JERSEY BOYS BROADWAY LIMITED

PARTNERSHIP; JERSEY BOYS

RECORDS LIMITED PARTNERSHIP;

SKUNK, INC.; GETTING HOME, INC.,

Defendants-Appellees. DONNA CORBELLO, No. 13-15826 Plaintiff-Appellant, D.C. No. v. 2:08-cv-00867-

RCJ-PAL

THOMAS GAETANO DEVITO,

Defendant,

OPINION

and

FRANKIE VALLI; ROBERT J. GAUDIO;

MARSHALL BRICKMAN; ERIC S.

ELICE; DES MCANUFF; DSHT, INC.,

FKA Dodger State Holding Theatricals, Inc.; DODGER

THEATRICALS, LTD.; JB VIVA

VEGAS, LP; MICHAEL S. DAVID;

JERSEY BOYS BROADWAY LIMITED

PARTNERSHIP; JERSEY BOYS

RECORDS LIMITED PARTNERSHIP;

SKUNK, INC.; GETTING HOME, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada…