This week, we highlight Ninth Circuit decisions denying copyright protection to assertions of fact (even if those facts were made up), and deepening a slight Circuit split on the Americans with Disabilites Act's burden-shifting framework.
CORBELLO v. VALLI
The Court holds that factual descriptions contained in an autobiography and incorporated into the Broadway hit Jersey Boys were not protected by copyright.
The panel: Judges Tashima, W. Fletcher, and Berzon, with Judge Berzon writing the opinion.
Key Highlight: “It is [a] feature of copyright law, not a bug or anomaly, that an author who deals in fact rather than fiction receives incomplete copyright protection for the results of his labor.”
Background: In 1988, Rex Woodard agreed to ghostwrite the autobiography of Tommy DeVito, one of the original members of the Four Seasons (along with, among others, Frankie Valli). Although it was never published, Woodard completed the book and registered his copyright in it. In 2005, Jersey Boys—a musical based on the Four Seasons’ life and music—debuted on Broadway, becoming a hit. After learning that DeVito had provided a copy of the book to the writers of Jersey Boys, Woodward’s widow brought suit against DeVito and a number of other defendants associated with the musical, alleging copyright infringement and other claims. A jury ultimately found that the plaintiff has established her infringement claim, but the district court granted judgment as a matter of law to the defendants, finding that any infringement constituted fair use.
Result: The Ninth Circuit affirmed, albeit on different grounds. As the Court explained, proof of copyright infringement requires a plaintiff to show that the defendants copied “protected aspects” of the copyrighted work. And, the Court continued, while “the creative expression that is in the [book]—the writing style and presentation—is protected by copyright, the asserted historical elements are not.” Applying that test, the Court held that none of the alleged factual similarities between Woodward’s book and Jersey Boys—DeVitos’s “‘voice, cool demeanor, and braggadocio,’” the process of making and releasing the songs “Sherry,” “Big Girls Don’t Cry,” and “Dawn,” the assertion that the Fours Seasons were not a “social movement” like the Beatles, and the description of the band’s Rock and Roll Hall of Fame induction—were protectable.
The plaintiff also claimed that certain other assertions contained in the book were entitled to copyright protection because, although presented as facts, they were not actually true. In rejecting that contention, the Court adopted and applied what it dubbed the “asserted truths” doctrine (known elsewhere as “copyright estoppel”). The Court reasoned that “[i]t would hinder, not ‘promote the progress of science and useful arts’ to allow a copyright owner to spring an infringement suit on subsequent authors who ‘buil[t] freely’ on a work held out as factual.” It also rejected the plaintiff’s argument that the fact that the book had never been published rendered the doctrine inapplicable, explaining that publication had no effect on this underlying rationale. Applying this doctrine, the Court held that the remaining alleged similarities between the book and Jersey Boys—the characterization of Frankie Valli’s girlfriend Mary, DeVito’s intervention to help Valli after an arrest, the description of a record-label party, an incident in which two extortionists staged a fake murder in Valli’s car, and the band’s discussion of the meaning of the song “Walk Like A Man”—were also unprotected.
LOPEZ v. CATALINA CHANNEL EXPRESS, INC.
The Court holds that a plaintiff bringing suit under Title III of the Americans with Disabilities Act for a failure to remove an architectural barrier has the initial burden of plausibly showing that the cost of removal does not exceed the benefits.
Panel: Judges Murguia, Christen, and Hellerstein (S.D.N.Y.), with Judge Murguia writing the opinion.
Key highlight: “[W]e adopt a burden-shifting framework whereby plaintiffs have the initial burden at summary judgment of plausibly showing that the cost of removing an architectural barrier does not exceed the benefits under the particular circumstances. The defendant then bears the ultimate burden of persuasion that barrier removal is not readily achievable.”
Background: Catalina Channel Express owns and operates the Jet Cat Express, a passenger vessel that sails between Long Beach and Santa Catalina Island. Daniel Lopez, a paraplegic passenger on the Jet Cat, brought suit under the ADA, alleging that he was denied accommodation for his disability because the ship’s restroom doorway was too narrow to allow his wheelchair to enter. Catalina’s vessel engineer testified that the restroom entryway couldn’t be widened because installing a different type of handle at the edge of the sliding pocket door risked injuring passengers’ hands when the door closed, and the restroom couldn’t be structurally altered without compromising the stability of the ship. Based on that evidence, the district court granted Catalina’s motion for summary judgment on the ground that widening the restroom door was not readily achievable.
Result: The Ninth Circuit affirmed the district court’s conclusion that plaintiff failed to meet his initial burden of plausibly showing that widening the Jet Cat Express’s restroom door was “readily achievable,” but nonetheless reversed the district court’s grant of summary judgment because the district court did not evaluate whether Catalina could have made the restroom available through “alternative methods.” The Court began by explaining that under Title III of the ADA, an entity is liable for “a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable,” or, even where removal is not readily achievable, if it fails to “make [its] goods, services, facilities, privileges, advantages, or accommodations available through alternative methods” that are readily achievable.
Next, the Court resolved a question of first impression in the Ninth Circuit: “which party bears the burden to establish that removal of an architectural barrier is or is not readily achievable” under the ADA. Joining the Second Circuit and breaking slightly with the Eighth, Tenth, and Eleventh Circuits, the Court held that “plaintiffs have the initial burden at summary judgment of plausibly showing that the cost of removing an architectural barrier does not exceed the benefits under the particular circumstances.” (The other courts require plaintiffs to “initially present evidence tending to show that the suggested method of barrier removal is readily achievable under the particular circumstances.”) Burden-shifting, the Court explained, is consistent with the text of the statute, other provisions of Title III, and adjudication of employee claims under Title I of the ADA. The Second Circuit’s slightly more relaxed approach “is most sensible,” the Court reasoned, “because otherwise we would be asking too much of plaintiffs, especially considering that defendants have more knowledge and information regarding their own facilities, which allows them to quickly and easily counter implausible barrier removal proposals.”
Applying that framework, the Court affirmed the district court’s conclusion that Lopez failed to meet his initial burden of plausibly showing that the costs of widening the Jet Cat Express’s restroom door did not exceed the benefits of doing so here. Despite that agreement, the Ninth Circuit nonetheless reversed and remanded for the district court to consider whether Catalina could make the Jet Cat’s restroom accessible “through alternative methods without much difficulty or expense.”