and i gather you're splitting time fifteen and five i am always splitting time with myself you're always there's the other side to splitting time got i guess to see that right splitting time with your briefcase here i am the x i'm going to reserve twenty minutes for a bottle but the briefcase  or bello in this case and i'm also pleased to report that we have a guest in the audience mr robert mccurdy and who was the trial counsel below who's come to see things today the one thing that i'd like to see the say at the beginning i know the questions will immediately follow is that this is not just another that's my movie case in which someone comes out of the woodwork and i say that's my intellectual property and you've stolen it and i want to make some money from it alleging copying based on some tenuous information in this case rather than plaintiff doing that when appellate court bellow was at home minding her own business a plethora of public statements and articles started coming out from the some of the defendants that are now in the case most notably jersey boys director desk mack enough and the writer rick ellis and so forth indicating that jersey boys was largely based on the unpublished biography of tommy does ito and i but i mean the problem is to start with that if somebody is doing a star kong movie buff whatever you know obviously read other accounts of the time the subject matter that you're dealing with so that can it's different from a novel where the novels  relevant necessarily to copyright but this was an unpublished work that was not accessible that really nobody knew about even rex woodard the author and his wife's own family cause of action and that's not the one we've got here correct on the nd part of your statement though which which relates to a theme that has been very prevalent in this case and it's something the defendants of raisina something the judge jones in the court below is silently applied the notion of copyright of stoppel in fact there is very much in this book that is not true which interesting we can identify and part of there is two reasons for that one reason if the true though is it represented to be true it is represented sure it's  represented to be true in the drawer at home of donna corbell zero having never spin seen by another human being and without her relatives even knowing about it and so it has not been which is what's critical and i'm happy to talk with you about that in terms of the copyright of stoppel argument it has never been publicly represented to be true before us at the moment we have as i understand  percent of which are ninety percent of which is really in a no infringement ground if you mean if we through what is actually say and then i was like you all right well so my going in question is why don't we look at this as an infringement problem and i mean we could affirm on the ground that well maybe there wasn't fair given what the jury found on infringement that you can't get to the fair use determination it could he did it but really what he was saying was that there was almost no infringement well well ok but on proposition st is that you addressed this on the ground of whether on the question of whether the jury finding of infringement was should have been overturned and it almost w was very close to doing that and the question is why don't we look at it that way well whenever a court sends me a memo before oral arguments saying please be prepared to address this argument or this issue at the oral argument i take that very seriously and therefore  unhappy and prepared to talk with you about that i will not belabor or repeat because you already have seen many many pages from me you know how i feel about the cross appeal rule of course we have i mean the question a you possibly prevail and that we can we can well the only reason that judge jones was so close to her seemingly so close to non infringement of terminations is because remember i'm sure you know going into the trial initially he had employed the on the on the new trial issue it's this is not a and if you said just question question it's an objective to know what question as to whether the jury verdict there's substantial evidence to support the jury verdict  infringement there is extremely substantial evidence your honor there is st of all the defendants marked up a copy of the work is where we start what we found in the green the course of discovery is that rick ellis who was the primary person who did this and one of the i thought when you on your insurance contestant we know that they knew about this and we know that they used it to some degree they relied on it to some degree but anybody who's doing historical work is going to refer rely on other historical works for information they did in that version they began the construction of this play they had another draft of the play call a one night wasn't successful they shopped it nobody was interested in it they had talked to frankie valli and bob gaudio and the members of the you know really not addressing the appropriate copyright questions which is all right let's assume all that happened is still a question of whether what they ended up with less infringing not our expert witness richard  thirty percent of what was in jersey boys came from the work and what they did your honor is they copied verbatim dialogue from the work in time and not historical dialogue that was contemporaneously recorded things that what i'd started to tell and i know he didn't purport not to make them up in the reason that we know and knew but he made them up or there's two reasons one is that this man was a huge fan of the four seasons and he recorded every single interview that he had and even casual telephone conversations that he had with tommy de vito and he also spoke with nick massi another one of the four seasons and nick de vito who was in the early variety tones a precursor to the four seasons and we for every item of subject matter that is in the book we have all of the associated recordings of those conversations was directed maybe incorrectly to look at just twelve examples  twelve examples the district court concluded that something like nine of them were not infringing and i tend to agree with them and as to the other three i'm not sure he was right that there was any infringement so our though is that we should  looking at or something broader than we can't look at that your honor i mean that this court has already said in dream gaves of arizona the p c on site that that's a reversible error right there a court the district court a district court is allowed to to advise and must advise the jury instruct the jury on what is not protected bill in a word but a district court is not permitted to say this is what is protected will be easer the similarities that cow this is all of what i'm allowing you to look at that  reversible error because it improperly limits the jury's consideration to certain aspects of the work as opposed to the whole work which is what copyright asked them to do which is what the intrinsic test requires them to decide so that right there that twelve similarities which is part of what we allege is a pattern of abuse that began very early in the case that we ourselves now look at the extrinsic look at the two works and saying applying the extrinsic test there's no way that they mean these are substantially similar and that's the end of the story i don't believe so i think that that would be erroneous why determination that there was no infringement what they said that that test that what the judge jones did was ninety percent that and that i mean ninety percent of what he was doing  w he was confusing and confused as to what it was applying thick or thin he will enjoyment but as to what he thought he was doing most of what he clued in was that with regard to these twelve examples there wasn't frenchmen at the end of the st trial when that when they were suing the defendants were suing to recover attorney's fees when we were coming up to the th circuit the st time and that st decision was reversed and one trial was the nd trial that's another trial there was that was summary judgment he granted summary judgment the st time ok and then we had an appeal because he invented this doctrine of a selectively exclusive licens he kept saying that the only scoundrel in the case was tommy de vito who was my client's co  all of that but here it here's a quote from him because we have a lot to do here we do and this is what i wanted to read to you to cut to the chase this is judge jones then in may or may th two thousand and twelve it's in our briefs telling the defendants they had a very reasonable basis to find infringement they being us they had a marked up version of the unpublished work they had conversations they had memos they had lots of evidence to have sustained a jury's finding that there was in fact infringement even willful infringement and efforts to hide it before the trial but no there was no new haven't but it was based on a comparison of the works the judge as much as he did not want us to win and as much as he as much as he did to try and make the path difficult what was going to easiest for him which he never did was to determine that there was no infringement under the extr he never decided that there was no infringement let the case out for that reason he used other reasons he tried to blame it on the veto and if he could have at the end of the case as you note if it was ninety percent he believed that there was no infringement he could've issued a j in a well or issued some kind of judgment pretrial or post trial that there was no infringement he did not do that he never suggested that he would do that he instead talked about all these other things to limit our case he was extremely upset when the jury made its verdict and i think that he thought but i can't get into another individual's mind that he was guiding the proceedings in such a way that it was not going to be possible for the jury to give us a verdict i mean think of this but we all know this when he applied thin protection and we go into a trial and he says to the jury you may only think about four similarities right turned out to be twelve he expanded twelve well i don't really see how that was different from protection for her to identify i told him in the hearings you'll see that in the record your honor you realize what you're doing why are we even going to trial how can the jurors find that book come to life that book for us for plaintive is every bit as much a derivative work or adaptation i mean the play jersey boys is every bit as much of a derivative work or adaptation  well the virtue you told me not to focus on what the judge judge jones determine and history different question now which is if you apply have racial identity standard we lose there's no way no way you could have infringement no way no way but no literary work in u s history has ever been accorded fen protection and i you know i almost feel like it's not even necessary to argue this to you because you are all of you have very distinguished opinions on what is thin and what is broad protection i have read them and as you know and as you have said as result on the science scene a quantum of this is originality right this all boils down to originality in terms of what is protected will in the threshold is low but it has to be not copied from someone else it cannot be a fact because facts are discovered they're not created we never have challenges or even claim  that facts are protective or the historical events are protected while we're not trying to monopolize the story of any of the four seasons lives all we have ever tried to do is to get protection of what wrecks were created and that is the expression about these historical events now that includes some things for example a link the chunk of dialogue about walk like a man where right before they hit the stage and are going into the recording studio to make the song walk like a man there is a dialogue between the de vito character in the bob gaudio character that says what do you mean bobby you know walk like a man as opposed to what like a woman and then it ends with this is an anthem for every teenage girl boy who's got a girl or a little finger  one thing is that you wander around between looking at the homework and looking you're saying you should have like a discrete things but if you look at the hall warm then this particular example which perhaps is your strongest is you know goes by it's or not it's one of the many make the whole work substantially similar it's one of many of the whole work is substantial but it probably isn't one of many and then in so far as anybody's been able to pull out actual that's the only one that looks like they were actually using the same language well no no no and with due respect to judge words on there are there are many examples when when just before they do to the song gone bob gaudio comes out on stage in the play and says we weren't a social movement like the beatles and that comes right from the work that we were in a social movement like the beatles context is just the words social movement that overlap it's not the words social movement it's that it's the kates the comparison it's the metaphor it's used to compare that contrast the beatles versus the four seasons there are numerous similarities between the works and there are when when that for example another huge scene in the play is the fake murder scene in the car  the valley is picked up by by some hoodlum zz and they go out joyriding and they the the details in that scene this is an event that really happened by the way that is a historical event there was a fake murder this  prank in a car but it did not happen the way that it is depicted in the book and there were no there was no dialogue recall but both gaudio and valley testified both of them that neither of them gave one word of dialogue for this play to the authors however as with any play this play is filled with dialogue that is how the action is related and developed and a lot of that dialogue came from the p who created it we had there was a one witness who testified charles alexander who's mentioned in the in the briefs not by name but he's a former editor of time magazine and his testimony is in the record and we've cited to it in the he's and he said that this is very common in writings that are that are not fictitious when you're relating historical events they don't really know what was said at the time and so that the dialogue is often fictionalized to create a certain flavor this is why and this is recognize this is why i never said number one copyright which is something that we cited in our brief for he was well that it's in a footnote he says because of this reality and because the public generally knows that this kind thing goes on that this notion of copyright a stoppel is seldom applied to biographies at all because i mean what you mean by copyright a stop on why it's not you know print some why it's not a concept that appears and it's not in our briefs because we as the under the presentation principle appealed the issues that we wanted to appeal we did not appeal the verdict on liability because it was firm and it was issued and this is something that goes to the liability verdict we appealed the specific judgments that the judge made the defendants then came in which is why we moved to strike and did all of the things that you've read the defendants came in and they wanted to make this case about we did not infringe they didn't file across appeal to do that i know how you feel about that judge birds on because i read your nine hundred and ninety nine decision about how the cross appeal rule is a rule of practice and it's right not jurisdictional there's actually a split hairs fictional but it's not you know i have to have a cross appeal and you your honor that was about this issue and it was about as i was on the current nine hundred and ninety nine ok i did read a decision about but there is a there is actually disagreement about this as you know there's a split on the cross appeal rule in the circuits i'd hate for us to be the ones that have to go up to the supreme court and deal with that in this case but that what we've said is correct i e that the way that we are bound by that the question is whether you are trying to alter the verdict in the verdict is you take nothing so as long as you take respect we think that the liability verdict is separate in that they needed across appeal on that but at minimum on this appeal this needs to be something that they have requested at some point before the lower court before it's adjudicated for the very st time on  now i understand you're splitting fifteen and five yes that's all i'm going to try sort of miscarriage of you good fifteen on the clock and that will maybe to some extent ameliorate the problem of the st person always goes over thank you your honors david kors nick on behalf of all of the defendants the producers of the play jersey boys keep your voice up that well yes the producers of the play jersey boys the writers of the play and the worked on this case through much to be said but there is something that the plaintiffs counsel just said that i want to address immediately and that is that there is no honor there are many cases in which thin protection has been applied to a literary work one of them is narrow it's been a long  accepted norm in this circuit that literary where that historical works are entitled to a lesser degree of protection then fictional works that's not an exciting or new concept at all that i should even be learned hand who really i think in a lot of ways drives this this thought he says not only are all the facts recorded in history why when i'm focused on is this the  down determination made incorporate a series of infringement determination on each individual topic right i mean before when he was trying  so so he's made those determinations on the record and he was very mushy about up at that juncture and that whether he was applying thick or thin protection it ever was resit really matter it doesn't matter because on the because then is an intrinsic level test they can't meet it they know they can't meet it just the way apple in its lawsuit understood they couldn't meet it either so they just stepped aside so we don't need the trial if then there's the standard and they know to us whether in if we're looking at the infringement questions as incorporated into the fair use doctrine because i think you have real i mean if you believe the jury verdict i think you have real problems with the fair use determination  but incorporated in that was and was a whole series of infringement determination correct the extrinsic test was failed on every single level so you don't even get to the the extr w and holing in particular in which they say the level of protection accorded nonfiction accorded history is low and not to  nonexistent doesn't say nonexistent but extremely little thin so for those we're almost five minutes into your argument we've not yet mentioned the actual works in question well let me that's what i'd like to me that there are some real similarities between the work done by mr woodward and the play including those that were just described by your adversary tell me why there's not infringement with respect for example walk like a man or the dialogue in the fake murder case in the car right let's look to me awfully similar and they look as though they're taken from the work let's do i have in front of me walk like a man walk like a man is a an event human events involve human speech and human expression and the what people say are part of what happened in that particular dialogue that is a dispute that occurred at a particular place at a particular time among particular people it actually happened it happened at one thousand six hundred and fifty broadway it actually happened with those precise words it it in substance it certainly did yes well that was not my question my question is that looks to me as though the dialogue is made up by mr woodward as to what likely was said but it was not but how do you know that it was how do i know yes well testified that his father used the term wrapped around the finger of a little girl and that that's where it comes from a comes from god even his father the term that he uses about anthem he says tommy doesn't use words like that it was the way i would defend music musically i said that that's what he testified to but it shouldn't really matter did mr woodward ever talk to him he did not know how would he even know that because the authors of the play were callous and and marshall brickman interviewed bob guardiola and frankie valli at length and discuss that later man but it shows up in the work and then it shows up in the  play how do you want to be out of the get into the woods ask me there are two questions here the one that you st asked me which i address but i'm not sure that it necessarily is legally relevant and that is where i'm from where did they get it i'm trying to just tell you there's evidence on the record that it came from god and the circumstances when i was in the work it obviously didn't come from god you is that correct it may well have because woodard had i volume seventeen volumes of other people's writings an article that included interviews with guardiola and others and who use their words did you put it is reportable and usable by others as fact it's part of a human event and the one thing that is very clear is that there was a song called walk like a man there was a dispute between frankie and tommy and bob about the title of that song the dispute related to the problem that they sell that this song presented by singing walk like a man in falsetto they felt tommy thought that would be embarrassing to them and the others wanted to hold on to that the song they went ahead with that title and it the song title the substance of the dispute the people with him it who participated in that dialogue all of that was said woodard did not invent that that was a real the other thing that's significant about this  i'm rolling that in that book i understand the writing but in terms of if he if this was in fact what was said he could have reported and guardian could have reported the same thing because it's what was said well he could report what was said if it was reported as it to be what was said as tommy de vito remember right that was a representation that's a representation if they drew it from the book they ask audio what was said and this is what was that said and he said the same thing that's just because it's what happened that's what happened and then fact that is what happened the other thing that's significant is that these are used in very different ways the the the way that tommy de vito presents this is as if it's just sort of a friendly exchange and they are all united afterward unhappy about it in the play it becomes the st stage or the st breakup the st sign that tommy is being pushed aside out of the what are we looking to find out whether the whole book is is is on thin protection virtually identical and was the whole book a substantially similar one and do that you have to i guess really do what the court did with c v durang when judge does seem years ago look compare these two fictional plays there were some twenty nine or something of that sort similarities he eliminated all but five as not passing the extrinsic test and then his conclusion was the remaining five are just not enough for me to deliver an intrinsic test of the kind that iran is just described so the case is over and that's really what judge jones could have and should have done when he reached the point that there were four but although he called it fair use but he really did this counting up thing as well kerr i think that he basically was doing their wral with campbell on top of it and other words narrow is both a and a series of extrinsic tactics that knock out virtually all of the identities claimed and then the remaining ones are treated as common phrases that were fair use pre campbell so that's pretty impressive and they actually say well there's no clear economic impact from the use of these remaining phrases so therefore it's fair use so jones basically is following the rail that's my view of what it is that that transpired and if you wanted to follow just strict extrinsic test and no fair use that would be appropriate because frankly our view about this case from the outset because you never need to get to the intrinsic test you never need to get to fair use because none of it is protectable you take that phrase what do you can do about it asshole in this shooting in the car scene that is a story that's frankie's story he's been dining out on that story for years it happened to him it didn't happen to tommy so frankie tells tommy this story tommy tells woodard woodard writes it down the now frankie can't tell it again that's this lawsuit that's how unfair this lawsuit really is it's a story about the lives of the people who are being sued and saying that they have to pay to tell the family stories of the band's stories that they  have my time is running out and i want to have my co counsel have an opportunity to dress her on good morning i'm a please the court daniel my editor for the defendants apple e's one it's such upon the one comment about the dialogue and as judge appears on indicated the autobiography itself throughout the pages of the autobiography from prologue to the end purports to be a true story a nonfiction work in the prologue tommy to veto voices saying if they only knew the whole the whole story about four seasons then you might things might have been different he talks about the fictional biographies that they have but here he's going to tell the whole truth he says that e r thirteen thousand seven hundred and eleven i promised my friends a complete and truthful chronicle of the four seasons and that he's going to talk straight about it so it's very clear that the work purports to be nonfiction in the crane vs poetic products case of southern district new york case of two thousand and nine the court rejected the plaintiff in that case is attempt to re characterize reconstructed dialogue is not protected by copyright and that's exactly what the situation is here i want to spend a little bit of time to correct a serious misstatement in the record by appellant appellants counsel beatles attorney and that letter in our supplemental excerpts of record page fourteen as messina admitting that the autobiography is quote not salable close quote in the reply brief it fifteen appellants counsel complains that the letter whether it was usable if it works whether it could have been solved not for itself but thanks for an essay that issue the plaintiff s admitted no evidence on that issue that there was any opportunity to license it and the scene letter does talk about the fact that it's not saleable because in part it needs conflict and ideally it would need to have music which is exactly the case they had no music rights and of course jersey boys is a primary selling point was the music of the four seasons which everyone knows but the main point i want to make is that the statement that that letter was not in the record is incorrect it is in the record record the letter was not excluded by a stipulation as point of claims but it was actually in the record and at trial we are mrs eames videotaped testimony to the jury including her testimony  being individually liable even if the other defendants get out on the basis of either fair use or the extrinsic test the plaintiff argues that merely licensing a copyright right that you don't own constitutes copyright infringement even if the licensee did not infringing copyright plaintiff cites only some theoretical non controlling law review articles and one case the banco popular case st circuit case violation in that case see states that case that proposition version or something like that but that case specifically says that mere authorization of a performing rights license on a song did not result in liability because there's no the th circuit in the love arts vs a t n t case which judge fletcher was on the panel held that the defendant must know of the infringement and declined to stop it or be willfully blind to the infringement and the district court in this case correctly ruled that there was no evidence that could support a finding that valiant guardiola knew of the infringement by the other defendants they didn't even know the existence of the autobiography they did not even read the autobiography until after their depositions in this lawsuit by virtue of the plaintiff's counsel insisting on that being the case so there was no actual knowledge of infringement and there was certainly no willful blindness to such infringement that my time has expired but i just want to said bottom line is that in this case value in god you are being sued for telling their own life stories that is unjust and i would either of you defending the fair use fair use because of the factors your honor primarily that the fact that it's transformative it is a work we've taken some facts perhaps some surrounding expression in it and use it for a different purpose and i think the walk like a man example is one example certainly the social movement example is another one where the concept that the beatles were not a social movement in the two works is entirely different in the autobiography tommy says  doing that at all i guess i would just a rerun of the the writer's mind all kinds of nonfiction works that were out that magazine articles liner notes any kind of books or articles that were written about the four seasons of course they use this autobiography as well as well as interviewing mr de vito extensively they use all of that stuff to inform their perspective from the autobiography they took facts anecdotes or whatever purported to when you use them in a different fashion so the for jersey boys tells a story about each of the four seasons in four different acts and in in jersey boys tommy is not the hero tommy is the guy who started putting the band together but he sort of buffoon in a sense and frankie is the hero in the autobiography it's the complete opposite tommy is reported to be the guy he's the stand up guy and frankie's the bad guy who doesn't was disloyal to his friends it is a different take on it it's taking what is in the autobiography and using it for a different purpose to create a brand new creative work ok thank you very much thank you would you put the two minutes on the clock he's let your honor time is the enemy tommy de vito swore under oath during his deposition which comprise his testimony at trial that the walk like a man dialogue in the work and in jersey boys never occurred that he never said it that it never happened and the other two surviving members of the four seasons both swore under oath that they never gave one word of dialogue to the writers of jersey boys the problem with responding to parties who unlike our briefs to do not document what they say everything that we have told you i'm sure you can see in our briefs are extensively cited directly to the record and you can see all of this yourself yes we not  circuit ever mentioned it they did it in a footnote by citing to the nd circuit's decision erica and it was all about publication that's equitable because if i go out and i tell the world that i am writing a nonfiction book and then you the reader or other historians rely on it when it's published and take things from it as you're permitted to do because it's historical and it's not protected then i come out and sue you and say ha ha the joke's on you that is wrong and it's conduct that should be a stop just for the same reasons that other conduct is judicially astop it has never in the history of u s jurisprudence and the doctrine has existed for one hundred and fifty years been applied to a published work ever and ten rejected the notion an argument that in a real had anything to do with and protection that it required bodily appropriation or a virtual dynegy standard feist invented coined the term then protection in doing so it did so two sentences after and contrasting the thin protection that's accorded compilations with the type with biographies that are recorded thick protection in harper and row which was its prior case then protection is only applied to works that have no original creativity other than the organization and assembly of facts so that the selection and arrangement is all that is protected and that's why to infringe a work like that were only selection and arrangement is protected the two works have to be virtually identical if i didn't if i if i do a best on my own time you are if you'd like to sum up the word or two yes i could read you twenty minutes worth of similarities between the works and the things that we are referring to and we document in our briefs are things that wrecks were created and we've provided documentation on all of those items thank you thank you both sides for their arguments covello vs valley submitted for decision