Judge Overturns ‘Jersey Boys’ Verdict; Jury Came to Wrong Conclusion

Corbello v. DeVito et al., No. 2:08-cv-00867 (D. Nev. June 13, 2017)

U.S. District Judge Robert Jones overturned a verdict that the creators of “Jersey Boys,” had improperly used material from an unpublished autobiography of Tommy DeVitto. In November, the jury found for Donna Corbello, widow of Rex Woodard who was the ghostwriter of DeVitto’s autobiography. After the jury found that the show’s writers infringed on the copyrighted material, the defendants filed a motion for a new trail. Judge Jones determined the show’s content constituted fair use of the book. He stated that the jury could have found 145 creative words to have been copied from the book into the show. He determined those 145 words to constitute about 0.2 percent of the 68,500 words in the book. Back in November, the jury concluded that 10 percent of the play’s success was credited to the book, which Judge Jones called “unsupportable.” While comparing the book to the play was a difficult job, the jury also had to deal with 40 pages of instructions, which may have caused them to come to an improper conclusion.

“Different Strokes” Copyright Case Subject to Claim Preclusion; 7th Cir.

Johnson v. UMG Recordings, No. 16-2943 (7th Cir. Oct. 31, 2016).

Plaintiff’s copyright infringement case against some publishers concerning samples of his song “Different Strokes” was precluded by settlement of an earlier suit, holds the 7th Circuit in affirming that the Plaintiff should have moved before the original Judge to vacate the judgment on the alleged basis of fraud rather than commencing a new action.  The Appellate Court stated: “a judgment in civil litigation is not subject to collateral attack.  Fraud is a basis for setting aside a judgment, but that is done by motion…in the original case rather than by separate suit.”  Because the plaintiff had not attempted to re-open his earlier suit, his effort to obtain collateral review was properly dismissed.  The Court also noted that plaintiff was not entitled to split his claim into multiple pieces under the “merger and bar” doctrine.  “He must instead litigate all closely related claims at once.”

Songwriter's Widow Sanctioned; Default Judgments In Favor Of Assignee Not Vacated

Bridgeport Music, et al. v. Smith, et al., No. 12-1523 (6th Cir. May 1, 2013).

This action is based on default judgments entered in 2004 that plaintiff obtained against defendants for copyright infringement of the 1974 song "You’re Getting a Little Too Smart" ("Smart").  Plaintiff was the assignee of the songwriter's rights in the song.  In 2011, the songwriter's widow moved to vacate the default judgments, arguing that she, not Plaintiffs, was the legal owner of the copyright by operation of law at the time the lawsuit was filed.  The district court denied the motion, as well as her motion for reconsideration, and the widow appealed.  The Sixth Circuit affirmed, and granted Plaintiffs motion for damages and costs.

After stating the relevant facts, the Court began its analysis by determining who was entitled to what copyright interests in “Smart” under the renewal provisions of the Copyright Act:  "(1) Based on their assigned interest in the initial copyright, Plaintiffs had the right to sue for infringing acts occurring up through December 31, 2002, see 17 U.S.C. § 501(b) ..., and they had three years after that date to bring a cause of action. ... (2) Because Tilmon died prior to the renewal term, Tilmon’s contingency interest in the renewal copyright passed to Tilmon-Jones and Tilmon’s children, on January 1, 2003."

Next, the Court considered whether the widow, as a non-party to the litigation in which the judgments were entered, had standing.  The Court determined she did not have standing to bring a Fed. R. Civ. P. 60(b) motion.  Rule 60(b) provides in pertinent part that a “court may relieve a party or its legal representative” from a final judgment.  Nor was the widow in privity, or were here interests "strongly affected."

The Court also found that the widow's motion to vacate the judgments was untimely under Fed. R. Civ. P. 60(c)(1), which requires such motion be made within a reasonable period of time.  She did not file the motions until 6 years after constructive notice of the judgments (due to recordation of the judgments with the Copyright Office), and 7 years after they were entered.  The motions also were barred by a release the widow signed in another action.

Lastly, the Sixth Circuit sanctioned the widow and her counsel, pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912.  "The conduct of Tilmon-Jones and her counsel was objectively and patently meritless and a waste of judicial resources. Tilmon-Jones maintains that her appeal is not frivolous because the question of whether a nonparty has standing under Fed. R. Civ. P. 60(b) was not obviously without merit. This may be true, but it does not obviate the fact that her appeal was utterly without merit because it was untimely and barred by a release. We find that this appeal is frivolous and that sanctions are appropriate."