Corbello v. DeVito

• Decision Date: 31 January 2012
• Docket Number: No. 2:08–CV–00867–RCJ.,2:08–CV–00867–RCJ.
• Citation: 844 F.Supp.2d 1136
• Parties: Donna CORBELLO, Plaintiff, v. Thomas Gaetano DeVITO et al., Defendants.
• Court: U.S. District Court — District of Nevada

844 F.Supp.2d 1136

Donna CORBELLO, Plaintiff,

v.Thomas Gaetano DeVITO et al., Defendants.

No. 2:08–CV–00867–RCJ.

United States District Court, D. Nevada.

Jan. 31, 2012.

Gregory H. Guillot, Gregory H. Guillot, PC, Dallas, TX, George L. Paul, Robert H. McKirgan, Lewis and Roca LLP, Phoenix, AZ, John L. Krieger, Lewis and Roca LLP, Las Vegas, NV, for Plaintiff.

Booker T. Evans, Jr., Greenberg Traurig LLP, Phoenix, AZ, Christopher David Johnsen, Lawrence B. Hancock, Greenberg Traurig LLP, Christopher B. Payne, Houston, TX, Daniel M. Mayeda, Abigail A. Jones, Leopold Petrich & Smith, P.C., Los Angeles, CA, David S. Korzenik, New York, NY, Eric W. Swanis, Alma Chao, Greenberg Traurig, Samuel S. Lionel, Maximiliano D. Couvillier, III, Todd E. Kennedy, Lionel, Sawyer & Collins, Las Vegas, NV, for Defendants.

ORDER

ROBERT C. JONES, District Judge.

This case arises out of alleged copyright infringement. Plaintiff Donna Corbello is the widow and heir of Rex Woodard, who assisted Defendant Thomas Gaetano “Tommy” DeVito in writing his unpublished autobiography (the “Work”). Plaintiff alleges that DeVito and others wrongfully appropriated the Work to develop the screenplay for Jersey Boys, a hit musical based on the band The Four Seasons that has played in the United States, Canada, England, and Australia. Corbello has sued several companies and individuals, including several members of The Four Seasons, for copyright infringement, and has sued DeVito on several state law causes of action. The Court has ruled that DeVito and Plaintiff were 50% joint owners of the Work, that DeVito had granted Defendants Frankie Valli and Robert “Bob” Gaudio a selectively exclusive license to exploit the Work, i.e., a license that was exclusive as against DeVito but nonexclusive as against Plaintiff, and that Valli and Gaudio had in turn granted a nonexclusive sublicense to Defendant DSHT, Inc. The Court made no rulings as to any further licenses. The Court also ailed that only DeVito was potentially liable for a direct accounting. Pending before the Court are eight motions for summary judgment.

I. FACTS AND PROCEDURAL HISTORYA. The Work

Rex Woodard was an attorney, author, and avid Four Seasons fan who finally met Defendant and founding Four Seasons member Tommy DeVito for an interview on December 9, 1981 as a result of the publicity generated from an article Woodard had written about the band in Goldmine magazine earlier that year (the “1981 Article”) that focused on the years between the band's breakup in 1970 and reconstitution in 1975. ( See Third Am. Compl. ¶¶ 26–29, Mar. 18, 2011, ECF No. 457). On December 23, 1981, Woodard interviewed Tommy's brother Nick DeVito, and on January 8, 1982 he interviewed Nick Massi, another founding member of The Four Seasons. ( Id.¶ 29). The result of these three interviews was a second article published in Goldmine in June of 1982 (the “1982 Article”), which focused on the band's earliest incarnation, The Four Lovers. ( Id.).

Woodard kept in touch with DeVito and founding Four Seasons member Frankie Valli throughout the 1980s, and in November of 1988 Woodard flew to Las Vegas, Nevada for a series of interviews (the “1988 Interviews”) with DeVito that sewed the seeds of the present litigation. ( See id. ¶ 31–32). During these interviews, DeVito explained to Woodard that except for Valli and final Four Seasons founding member Robert “Bob” Gaudio, the members of the band (DeVito and Massi) had spent several years engaged in criminal enterprises and in prison and retained “underworld contacts” throughout the band's era of popularity. ( See id. ¶ 32). Because this revelation was in stark contrast to the clean-cut image of the band presented in the popular media, Woodard realized the journalistic value of the story, and DeVito offered Woodard the opportunity to write his authorized biography with full credit and an equal share in any profits. ( See id.).

Woodard returned to Beaumont, Texas to begin writing DeVito's authorized biography (the “Work”), which has never been published. ( See id.). On December 1, 1988, Woodard sent DeVito a letter (the “Letter Agreement”) memorializing their previous verbal understandings concerning creation of the Work. ( Id. ¶ 33). DeVito signed the Letter Agreement beneath the word “APPROVED” and mailed it back to Woodard. ( See id.; Letter Agreement, Dec. 1, 1988, ECF No. 457–11). The Letter Agreement reads in full:

December 1, 1988

Mr. Tommy DeVito

[street address]

Las Vegas, Nevada [zip code]

Dear Tommy:

I am making progress on the taped interviews we did. You suggested that I prepare a written memorandum of our arrangement for future reference. I will do so by this letter.

I agreed to write your authorized biography based on the recorded interviews you gave me, plus any other relevant information which would benefit the book. You and I will be shown as co-authors, with you receiving first billing. I will do all of the actual writing, but you will have absolute and exclusive control over the final text of this book.

We have further agreed that we will share equally in any profits arising from this book, whether they be in the form of royalties, advances, adaptations fees, or whatever. This agreement will be binding upon our heirs, both as to obligations and benefits, in the event one or both of us should die.

If this letter accurately sets forth our agreement as you understand it, sign the enclosed photocopy where indicated and return it to me in the enclosed self-addressed, stamped envelope. Keep this original letter in your own file.

Thank you for asking me to work with you on this project. I look forward to working with you over the next several months.

Sincerely,

[signed] Rex Woodard

Rex Woodard

RW/ml

Enclosures

APPROVED:

[signed] Tommy DeVito

TOMMY DEVITO

(Letter Agreement). Over the next two years, Woodard used the 1988 Interviews and all of his other knowledge about the band to create the Work, including his past interviews with band members, newspaper articles, magazine articles, album linings, Freedom of Information Act requests he filed with law enforcement agencies, and questionnaires he sent to DeVito. (Third Am. Compl. ¶ 34). Woodard compiled all of this information into the Work, resulting in a first-person, narrative-style biography told from DeVito's perspective. ( See id.). Woodard remained in close contact with DeVito throughout his creation of the Work and sent DeVito each chapter for approval and editing as they were completed. ( Id. ¶ 35).

B. Woodard's and DeVito's Publication Attempts

As the Work neared completion in late 1990, Woodard and DeVito attempted to find a publisher and even provided an outline of the Work to actor Joe Pesci to explore adaptation to a screenplay. ( See id. ¶ 36). Plaintiff provides a copy of what she claims is a cover sheet to a January 1991 version of the Work, which reads in full:

UNTITLED

TOMMY DEVITO/FOUR SEASONS

BIOGRAPHY

....

TOMMY DEVITO

REX WOODARD

©, January, 1991

( See January 1991 Work Cover Page, ECF No. 457–15).

Though he never smoked, Woodard had been diagnosed with lung cancer in 1989, and his condition had begun seriously to worsen by late 1990. ( Id. ¶ 39). By February or March of 1991, he was bedridden, and he died on May 25, 1991 at age forty-one. ( Id. ¶ 40). Woodard had hoped that income generated from the Work would support his wife and children. ( Id. ¶ 41).

C. Plaintiffs and Ceen's Publication Attempts

In accordance with Woodard's wishes, Plaintiff and Woodard's sister Cindy Ceen continued to seek publication after Woodard's death independently of DeVito; however, public interest in The Four Seasons had waned, making it difficult to find a publisher. ( Id. ¶ 42). Ceen determined in September 2005 to contact DeVito for his assistance in getting the Work published. ( See id.). Ceen first contacted a prominent member of an Internet Four Seasons fan group named Charles Alexander to facilitate contact with DeVito. ( See id. ¶ 43). Alexander responded to Ceen on September 22, 2005 that he had met with DeVito the previous day, had told DeVito of Ceen's desire to publish the Work, and that DeVito had agreed to help. ( See id.). Ceen called DeVito the same day (using a telephone number provided by Alexander), and DeVito indicated that he wanted to update the Work with post–1990 events and restore some “obscene” language Woodard had omitted. ( Id.). DeVito also claimed he had lost his copy of the Work and asked Ceen for a replacement, which she mailed to DeVito the next day, along with a letter memorializing their telephone conversation and informing DeVito that Plaintiff was considering self-publishing the Work if a traditional publisher could not be found. ( Id.). Neither Plaintiff nor Ceen heard from DeVito again. ( Id. ¶ 44). DeVito's attorney Jay Julien left Ceen a voice mail message on November 2, 2005, and Ceen returned his call the next day, during which conversation Julien told Ceen that he had spoken with DeVito regarding the Work and concluded that it was “not saleable.” ( Id.). Ceen was surprised by this conclusion, because the play Jersey Boys was scheduled to open on Broadway a few days later. ( Id.). Mien did not disclose that the Work had been used or exploited in any way or that rights in the Work had been licensed or assigned. ( Id.).

D. Jersey Boys and Plaintiff's Discovery of the Alleged Infringements

By late 2006, Jersey Boys had become a Broadway hit, earning four Tony Awards. ( Id. ¶ 45). Plaintiff had not seen the show, but she and Ceen estimated that the show's success would revive interest in the band and make publication of the Work viable. ( Id.). Plaintiff and Ceen engaged counsel to confirm the registration of Woodard's and DeVito's copyright in the Work, to register the copyright if not yet registered, and to contact Julien to see if DeVito had changed his mind about joint publication of the Work in light of Jersey Boys's success. ( Id.). A January 3, 2007 search of...