We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published.
In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play.
In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it.
The evidence at trial indicated that before the Play debuted, the Work had no market value. Woodard, DeVito, Plaintiff, and Plaintiff’s sister had been unable to find any company interested in publishing the Work despite their various attempts to do so between 1990 and 2005, because interest in the Four Seasons was not great enough to make sales of the Work profitable. Under these circumstances, the fourth and most important Harper & Row factor “greatly favors” a defendant.
(I'll leave aside the rant I have inside me about courts claiming the 4th factor is the "most important" and save that for another day). The court goes on, and addresses the third factor as well:
To the extent the Work may be profitable today, it is almost certainly only because of the Play, which—and this is important under the third Harper & Row factor—consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work.
As for the "purpose and character of the work, the judge says that it weighs against fair use, but doesn't say much else about it. On the nature of the work, the court notes that in many cases, publishing an unpublished work weighs strongly against fair use -- but in this case, it's different because the reason the work was unpublished... was because it was deemed unpublishable:
A work that is only unpublished because it is unpublishable despite great efforts, however, is an atypical situation. Such a work is not unavailable to the public because of a deliberate choice by the copyright owner, but because it is not commercially viable. In this case, the unpublished nature of the Work does not overshadow its biographical nature. The Court finds that this factor weighs in favor fair use.
The judge then goes into more detail about the fact that very little of the copyrightable expression in the book actually shows up in the play. He notes that there are just a few small sections that involve copyrightable expression and where there's substantial similarity in the play (indeed, the judge notes that he went through the "painstaking" process of reviewing a DVD of the musical with the written work to find all the similar parts). The court then notes each of the areas of similarity -- many of which seem... pretty minimally related to the book, but the judge says there's at least enough there to consider if it's infringement. And in the end, finds... 145 words at issue.
In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work (approximately 250 words per page times 274 pages). This factor strongly weighs in favor of a finding of fair use, at least where the “heart” of the Work was not infringed.
The court further notes that while it can be infringing to use "the heart" of the work, since this work is biographical, the "heart" is fact-based, and thus not subject to copyright protection. Finally the court notes that there's a strong argument that the play about the band is very transformative compared to an unpublished autobiography of one member:
The “transformation” in the present case is both a change of purpose and a change of character. The Play takes on a different purpose from the Work when the script (most of which was not taken from the Work) is incorporated into musical performances using material in which Plaintiff has no copyright. The purpose of the Work is primarily to inform. Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative “four seasons” of the history of the band. And in doing so, the Play adds creative expression beyond mere republication.... The transformative nature of the use in this case is significant.
And thus, with most of the factors pushing strongly towards fair use... it is determined to be fair use.
Of course, the case is far from over. There are still other factors at play and the judge grants a new trial on those points. And, it's possible (likely?) this new ruling will first be appealed. In other words... this decade-long case likely isn't over yet.