To prove copyright infringement a plaintiff must demonstrate that the defendant copied a substantial amount of protected expression from a plaintiff’s work. Facts themselves are not copyrightable (although a sufficiently original selection, coordination or arrangement of facts may qualify for a compilation copyright). In Corbello v. Valli, No. 17-16337, ___ F.3d ___, 2020 WL 5361461 (9th Cir. Sept. 8, 2020) (Valli), the U.S. Court of Appeals for the Ninth Circuit held that materials taken from an autobiography of Tommy DeVito (DeVito), an original member of the The Four Seasons (the band), and used in “Jersey Boys” (the musical), a Broadway musical depicting the band’s history and hits, comprised facts and other noncopyrightable expression.  After filtering out the nonprotected expression, the court held that there were insufficient similarities of protected expression to constitute infringement. In its analysis, the court rejected the plaintiff’s argument that a number of copied incidents and events described in the book were “made up” by its authors and therefore should be treated as protected fiction. Instead, the court applied a doctrine sometimes referred to as “copyright estoppel” (but redefined by the court as the “asserted truths” doctrine) to require that facts represented in the autobiography to be historically accurate must be treated as nonprotected facts rather than protected fiction.

The Works at Issue

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