Costs, Intellectual Property, POOF: Costs Against Copyright Infringement Plaintiff Went POOF Upon Reversal Of Summary Judgment In Favor Of Defense

 

License Agreement Involving the “Four Seasons” Was At Center Of Controversy.

     This next post is a fun one, involving the “Four Seasons” and “Jersey Boys,” and of course the different band members and an agreement between all of them granting transfer of rights about aspects of their lives with the band, including biographies.

     In Corbello v. DeVito, No. 12-16733 (9^th Cir. Feb. 10, 2015) (published), in a 3-0 panel opinion (but with a concurring opinion), a district judge granted summary judgment against plaintiff, who was an heir of Rex Woodard, himself a ghostwriter of an unpublished autobiography of Thomas DeVito, a former member of the “Four Seasons,” based on copyright infringement claims (mainly, accounting and declaratory relief). Earlier, in 1999, Mr. DeVito and former band member Nicholas Macioci executed an agreement granting Franke Valli and Bob Gaudio the exclusive rights to use aspects of their lives related to the “Four Seasons” in a development of a musical—which we know to be the “Jersey Boys,” wildly successful in nature. A district judge determined that the agreement was a “selectively exclusive license” such that no copyright accounting of profits was owed to any former co-owner, even taxing costs against plaintiff. (That is federal parlance for granting costs in favor of the successful defendants at the time.)

     The summary judgment win and costs award went POOF! on appeal.

     The panel decided that the matter really involved a transfer of Mr. DeVito’s derivative-work rights in the autobiography rather than a nonexclusive license, such that copyright co-owners had to account to others for profits. The panel reversed the summary judgment based on an implied licensed, but remanded because there were factual issues relating to a reversionary interest issue arising under the agreement.

     Because the merits were reversed, the costs award also fell. (Cusano v. Klein, 264 F.3d 936, 951 (9^th Cir. 2001).) In addition, plaintiff was awarded costs on appeal as the prevailing party. (Fed.R.App.P. 39(a)(4).) So, plaintiff, “who loves you pretty baby”—looks like the Ninth Circuit did.