'Asserted Truths' Doctrine Used to Decide Jersey Boys Copyright Dispute

After filtering out the nonprotected expression, the Ninth Circuit found insufficient similarities of protected expression to constitute infringement. In its analysis, the appeals 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 DeVito autobiography was co-authored by DeVito and Rex Woodard, plaintiff Donna Corbello's deceased husband. It was completed in 1991, well before the development of the musical. The book purported to be a complete history of the band from the perspective of one of its original members, covering the entire period from its inception in the 1950s through its induction into the Rock and Roll Hall of Fame in 1990. Although DeVito initially obtained a copyright registration in his name as the sole author, Corbello later obtained a supplementary registration naming Woodard as co-author.