When the Supreme Court ruled in 1998 that copyright infringement lawsuits were subject to the Seventh Amendment’s right to jury trial, the natural consequence of that ruling was that fair use would likewise become a jury issue. However, at the time Congress enacted the Copyright Act’s fair use provision, 17 U.S.C. § 107, copyright infringement lawsuits were still considered “equitable actions” and thus the exclusive province of federal judges. Indeed, Congress expressly noted that its adoption of four factors set forth in Section 107 was intended in part to reflect the criteria that courts themselves had developed under the judicial doctrine of fair use. The final result of this Congressional action was a fair use statute that vested the trier of fact with broad discretion over the circumstances under which an author’s exclusive rights must give way to other societal interests. Now that such broad discretion has been given to juries, are there any circumstances in which trial judges may overturn the jury’s fair use determination because the court would have decided the issue differently?
The district court in Nevada was confronted with precisely this issue in Donna Corbello v. Thomas Gaetano DeVito, et al., Case No. 2:08-cv-00876, a copyright infringement case involving the screenplay for the musical Jersey Boys, which is based on the lives and music of the rock and roll vocal group The Four Seasons. In an order handed down this week, the district court judge Robert C. Jones overturned a portion of a jury’s verdict for the plaintiff on the ground that the defendants were “entitled to a judgment of fair use as a matter of law.” At issue was whether those involved in the development of the screenplay for Jersey Boys had infringed the plaintiff’s unpublished manuscript about his life as a member of The Four Seasons. Following a 15-day trial, the jury found in relevant part that (1) the Jersey Boys screenplay infringed the manuscript, (2) the defendants’ use of portions of the manuscript was not fair use, and (3) the plaintiff was entitled to 10 percent of the screenplay’s profits. Continue Reading