FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DONNA CORBELLO,                           No. 17-16337
              Plaintiff-Appellant,
                                             D.C. No.
                 v.                       2:08-cv-00867-
                                             RCJ-PAL
FRANKIE VALLI; ROBERT J. GAUDIO;
MARSHALL BRICKMAN; ERIC S.
ELICE; DES MCANUFF; DSHT, INC.,             OPINION
FKA Dodger State Holding
Theatricals, Inc.; DODGER
THEATRICALS, LTD.; JB VIVA VEGAS,
LP; MICHAEL S. DAVID; JERSEY
BOYS BROADWAY LIMITED
PARTNERSHIP; JERSEY BOYS
RECORDS LIMITED PARTNERSHIP;
SKUNK, INC.; GETTING HOME, INC.,
               Defendants-Appellees.

      Appeal from the United States District Court
               for the District of Nevada
      Robert Clive Jones, District Judge, Presiding

         Argued and Submitted June 11, 2019
                 Anchorage, Alaska

                Filed September 8, 2020
2                      CORBELLO V. VALLI

    Before: A. Wallace Tashima, William A. Fletcher, and
             Marsha S. Berzon, Circuit Judges.

                    Opinion by Judge Berzon


                          SUMMARY *


                            Copyright

    Affirming the district court’s judgment after a jury trial
in favor of defendants, the panel held that the musical Jersey
Boys did not infringe plaintiff’s copyright in an
autobiography of Tommy DeVito, a member of the band the
Four Seasons.

    The musical depicted the history of the Four Seasons.
The district court granted judgment as a matter of law on the
basis that much of the alleged infringement concerned
unprotected elements of the work, and that any infringement
of protected elements was fair use. The panel affirmed on
the sole ground that the musical did not infringe the
autobiography, and did not reach fair use.

    The panel held that facts cannot form the basis for a
copyright claim. On close examination, each of the alleged
similarities between the musical and the autobiography were
based on historical facts, common phrases, and scenes-a-
faire, or elements that were treated as facts in the
autobiography and were thus unprotected by copyright, even

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    CORBELLO V. VALLI                        3

though now challenged as fictional. Adopting an “asserted
truths” doctrine, the panel held that an author who holds their
work out as nonfiction cannot later claim, in litigation, that
aspects of the work were actually made up and thus entitled
to full copyright protection. Because the musical did not
copy any protected elements of the autobiography, the panel
concluded, there was no copyright infringement.


                         COUNSEL

Gregory H. Guillot (argued), Gregory H. Guillot P.C.,
Dallas, Texas, for Plaintiff-Appellant.

Daniel M. Mayeda (argued), Leopold Petrich & Smith P.C.,
Los Angeles, California; David S. Korzenik (argued) and
Terence P. Keegan, Miller Korzenik Sommers Rayman LLP,
New York, New York; Maximiliano D. Couvillier III and
Todd Kennedy, Kennedy & Couvillier PLLC, Las Vegas,
Nevada; for Defendants-Appellees.

David H. Friedlander, David H. Friedlander P.C., Mount
Kisco, New York, for Amicus Curiae Dramatists Legal
Defense Fund.


                         OPINION

BERZON, Circuit Judge:

    The musical Jersey Boys depicts the history of a popular
musical quartet, the Four Seasons (“the Band”), from its
origins in Belleville, New Jersey, in the 1950s, to the Band’s
induction into the Rock and Roll Hall of Fame in 1990. Four
Seasons hits such as “Walk Like a Man,” “Big Girls Don’t
4                   CORBELLO V. VALLI

Cry,” and “Sherry” accompany the play’s dialogue,
recreating the Band’s musical legacy on stage. Jersey Boys
(“the Play”) debuted on Broadway in 2005 and ran for over
ten years, toured the country repeatedly, and was adapted as
a movie in 2014.

    In the late 1980s, Band member Tommy DeVito
partnered with Rex Woodard to write a book telling “the
whole story” of The Four Seasons. The result of this
partnership was an autobiography of DeVito (“the Work”),
ghostwritten by Woodard and completed before the Play was
developed.

    Our question is whether Four Seasons front man Frankie
Valli and other defendants associated with Jersey Boys
infringed Woodard’s copyright in the autobiography, now
owned by Donna Corbello, Woodard’s surviving wife. After
many years of litigation, including several summary
judgment orders, one previous appeal, and a trial, the district
court granted judgment as a matter of law (“JMOL”) on the
basis that much of the alleged infringement concerned
unprotected elements of the Work, and that any infringement
of protected elements was fair use. We affirm on the sole
ground that Jersey Boys did not infringe DeVito’s
biography, and so do not reach the district court’s fair use
rationale.

    Our decision rests primarily on “the unremarkable
proposition that facts, in and of themselves, may not be form
[sic] the basis for a copyright claim.” 1 Nimmer on
Copyright § 2.11(A). Although books generally contain the
author’s creative expression, protectable by copyright, a
nonfiction biography like the work in this case is necessarily
structured around historical facts and events, not themselves
copyrightable. See Harper & Row, Publishers, Inc. v. Nation
Enters., 

, 547 (1985).
                    CORBELLO V. VALLI                      5

    On close examination, each of the alleged similarities
between the Play and the Work are based on historical facts,
common phrases and scenes-a-faire (scenes that are
“indispensable, or at least standard, in the treatment of a
given idea,” Apple Computer, Inc. v. Microsoft Corp., 

, 1444 (9th Cir. 1994) (internal alteration and
quotation marks omitted)), or elements that were treated as
facts in the Work and are thus unprotected by copyright,
even though now challenged as fictional. Neither Valli nor
the other defendants violated Corbello’s copyright by
depicting in the Play events in their own lives that are also
documented in the Work. Because the Play did not copy any
protected elements of the Work, we conclude, there was no
copyright infringement.

I. Background

   A. Factual History

    Rex Woodard was an attorney, a writer, and a devoted
Four Seasons fan. In 1988, Woodard agreed to ghostwrite
the autobiography of Tommy DeVito, one of the original
members of the Four Seasons, and to share equally in any
profits arising from the book. Woodard completed the
autobiography in early 1991, but he and DeVito were unable
to find a publisher before Woodard’s death that same year.
Woodard’s widow, Donna Corbello, is the successor to
Woodard’s interest in the Work. Corbello and Woodard’s
sister Cindy Ceen continued the search for a publisher after
Woodard’s death, still without success.

    The Work reads as a straightforward historical account
and is presented as an autobiography, with DeVito listed as
a co-author. At the outset of the Work, the first-person
narrator, whom the reader understands is DeVito, describes
the book as the “complete and truthful chronicle of the Four
6                  CORBELLO V. VALLI

Seasons.” The narrator contrasts the Work with assertedly
inaccurate accounts that others had published, and notes his
own “candor.” In addition, Woodard and Corbello both
emphasized in letters to potential publishers that the Work
provided a behind-the-scenes factual look at the Four
Seasons.

    Ceen contacted DeVito in September 2005 to discuss her
family’s continuing interest in publishing the Work. She
noted that she and Corbello were considering self-publishing
the Work if they could not “attract a recognized publishing
company.” A few months later, DeVito’s attorney told Ceen
that DeVito had concluded that the Work was “not saleable.”

     The musical Jersey Boys debuted soon after. A smash
hit, it garnered four Tony Awards. Hopeful that the show
could renew interest in the Band, Corbello and Ceen sought
to confirm the registration of Woodard’s and DeVito’s
copyright in the Work.

    The U.S. Copyright Office’s records, it turned out,
indicated that shortly before Woodard’s death in 1991,
DeVito had registered the Work solely under his own name.
The copy deposited with DeVito’s copyright application was
identical to the Work written by Woodard with two
exceptions: the title page now excluded Woodard and
changed the title, and a single page in Chapter 41 was
missing. Corbello was eventually able, without DeVito’s
cooperation, to secure recognition of Woodard as a co-
author and co-claimant of the copyrighted Work; Corbello’s
copyright of the work was registered in 2007.

   Around the same time, Corbello learned through news
accounts that writers of the Play had had access to the Work
while creating the production and that DeVito was profiting
from the Play’s success. DeVito confirmed that he had
                     CORBELLO V. VALLI                         7

provided a copy of the Work to individuals who were
involved with developing the Play to use in their research.

    B. Procedural History

    In 2007, Corbello sued DeVito for breach of contract and
an equitable accounting, among other claims. The operative
third amended complaint listed fourteen defendants—band
members DeVito, Frankie Valli, and Bob Gaudio, as well as
writers, directors, and producers of the Play (and related
entities)—and twenty causes of action, including various
forms of copyright infringement. DeVito subsequently
settled with Corbello and is not a party to this appeal.

     The district court issued summary judgment orders that,
taken together, adjudicated most of the claims. The court
first declared that the Work was a joint work, that Woodard
was a co-owner, and that Corbello, as successor-in-interest
to her husband, had a 50 percent interest in the Work. But
the court then entered summary judgment in favor of all
defendants other than DeVito and one producer of the Play
based on its interpretation of a contract between DeVito,
Valli, and Gaudio.

    A panel of this court reversed in part. Corbello v. DeVito,

, 1066 (9th Cir. 2015). Corbello held that a
material issue of fact remained regarding the construction of
DeVito’s contract with Valli and Gaudio.

Concurring, Judge Sack noted that “it would vastly simplify
matters . . . if [on remand] the district court first decided the
defendants’ summary judgment motion arguing that Jersey
Boys does not infringe the Work as a matter of law in any
event, an issue which it previously avoided by granting
summary judgment on contract grounds. That might be the
end of the matter as far as ‘Jersey Boys’ Valli and Gaudio
are concerned irrespective of the difficult issues that the
8                   CORBELLO V. VALLI

majority and we address here.” 

(Sack, J., concurring) (citations omitted).

    On remand, the district court granted summary judgment
in part, holding that, while there was substantial similarity
sufficient to avoid summary judgment at least with respect
to “thin” copyright protection, most of the similarities were
based on historical fact or ordinary phrases, and the
similarities based on protectable material were insufficient
to entitle the work to regular “thick” protection as a matter
of law. That ruling had large impact on the scope of the trial
and on the jury instructions, as explained later, infra p. 11–
12.

    The case proceeded to trial. The jury found for Corbello
on the contract issue, and, on the infringement claim, found
that the Play infringed the Work, use of the Work was not
fair use, and 10% of the success of the Play was attributable
to infringement of the Work. The jury was not asked to
calculate or award damages.

    After the verdict, the district court granted the
Defendant’s motion for JMOL as to fair use, denied
Defendant’s motion for JMOL on other grounds, and granted
a motion for a new trial on apportionment. This appeal
followed.

   We review the grant of judgment as matter of law de
novo, Spencer v. Peters, 

, 797 (9th Cir. 2017),
viewing the evidence in the light most favorable to the non-
moving party, Reeves v. Sanderson Plumbing Prods., Inc.,

, 150 (2000); Torres v. City of Los Angeles,

, 1205–06 (9th Cir. 2008). Grant of new trial
under Rule 59 is reviewed for abuse of discretion. Kode v.
Carlson, 

, 612–13 (9th Cir. 2010).
                     CORBELLO V. VALLI                        9

II. Discussion

    Some basic precepts of copyright law are at play in this
case, so we begin with fundamentals.

    “To qualify for copyright protection, a work must be
original to the author.” Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 

, 345 (1991) (citing Harper & 

–49). A work is original if it is created by the
author with “at least some minimal degree of creativity.”

of a nonfiction work, even a
compilation of pure fact, entails originality,” Harper & 

, “[n]o author may copyright his ideas or the
facts he narrates,”

Copyright law, in other words,
protects authors’ original expression in their work but does
not protect ideas and facts.

    This division as to the copyright protection accorded
creative expression on the one hand and the lack of such
protection for facts and ideas on the other often leads to the
need to delineate, with respect to the copyright protection
accorded a particular work, whether the particular claim of
infringement concerns the protected or the unprotected
aspects of the work. “The mere fact that a work is
copyrighted does not mean that every element of the work
may be protected. Originality remains the sine qua non of
copyright; accordingly, copyright protection may extend
only to those components of a work that are original to the
author.” Feist 

. As a result,
“copyright does not prevent subsequent users from copying
from a prior author’s work those constituent elements that
are not original—for example, . . . facts.” Harper & 

.

   It is thus a feature of copyright law, not a bug or
anomaly, that an author who deals in fact rather than fiction
10                    CORBELLO V. VALLI

receives incomplete copyright protection for the results of
his labor. “The primary objective of copyright is not to
reward the labor of authors, but ‘to promote the Progress of
Science and useful Arts.’” Feist 

(alteration omitted) (quoting U.S. Const. Art. I, § 8, cl. 8).
“To this end, copyright assures authors the right to their
original expression, but encourages others to build freely
upon the ideas and information conveyed by a work.”

(citation omitted).

   It is against this backdrop that we must evaluate
Corbello’s claims alleging infringement of the Work, a
nonfiction autobiography. “Proof of copyright infringement
requires [a plaintiff] to show: (1) that he owns a valid
copyright . . . ; 1 and (2) that [the defendant] copied protected
aspects of the work.” Skidmore v. Led Zeppelin, 

, 1064 (9th Cir. 2020) (en banc) (citing Rentmeester v.
Nike, Inc., 

, 1116–17 (9th Cir. 2018)).

    Only the second element is here at issue. “The second
prong of the infringement analysis contains two separate
components: ‘copying’ and ‘unlawful appropriation.’” Id.
(quoting 

). Copying can be
demonstrated either through direct evidence or “by showing
that the defendant had access to the plaintiff’s work and that
the two works share similarities probative of copying,” while
“the hallmark of ‘unlawful appropriation’ is that the works
share substantial similarities.”

to unprotected aspects of a work does
not result in liability for copyright infringement. See id.; see
also Harper House, Inc. v. Thomas Nelson, Inc., 

     Defendants do not dispute that Corbello is a joint owner of the
Work.
                     CORBELLO V. VALLI                       11

197, 207–08 (9th Cir. 1989). So, “[t]o determine whether
similarities result from unprotectable expression, analytic
dissection of similarities may be performed. If this
demonstrates that all similarities in expression arise from use
of common ideas, then no substantial similarity can be
found.” Data E. USA, Inc. v. Epyx, Inc., 

, 208
(9th Cir. 1988) (citing Aliotti v. R. Dakin & Co., 

, 901 (9th Cir. 1987)).

    The parties’ central disagreements in this case are
whether the Play is substantially similar to the Work and
whether the defendants copied any protectable portions of
the Work. “The substantial-similarity test contains an
extrinsic and intrinsic component.” Funky Films, Inc. v.
Time Warner Ent. Co., L.P., 

, 1077 (9th Cir.
2006), overruled on other grounds by Skidmore, 

. The extrinsic test requires a three-step analysis: (1) the
plaintiff identifies similarities between the copyrighted work
and the accused work; (2) of those similarities, the court
disregards any that are based on unprotectable material or
authorized use; and (3) the court must determine the scope
of protection (“thick” or “thin”) to which the remainder is
entitled “as a whole.” Apple 

(referring to what we here call “thick” protection as “broad”
protection). Only if the extrinsic analysis succeeds does the
so-called “intrinsic” analysis takes place. See Funky 

. The intrinsic test “examines an ordinary
person’s subjective impressions of the similarities between
two works,” and involves questions of fact determined by
the jury under instructions as to the level of protection
applicable. Funky 

(citing Shaw v.
Lindheim, 

, 1360–61 (9th Cir. 1990)).

   Applying this framework, the district court, before trial,
conducted the extrinsic analysis and granted partial
12                       CORBELLO V. VALLI

summary judgment for the defendants, concluding that much
of the alleged infringement in this case involved either
elements original to the Play or similarities between the Play
and unprotected elements of the Work, such as “historical
fact[s] or ordinary phrases.” Twelve alleged similarities
between the Work and the Play survived this initial review
and went to the jury. 2

    In its post-trial order granting JMOL for Defendants, the
district court concluded that most of the twelve remaining
similarities were aspects of the Work not protectable by
copyright. The court undertook this analysis as part of its

     2
       Corbello argues that the district court improperly limited the jury’s
consideration to twelve potentially protectable similarities, because she
should have been able to seek protection for the original selection and
arrangement of otherwise unprotectable elements. “We have extended
copyright protection to ‘a combination of unprotectable elements . . .
only if those elements are numerous enough and their selection and
arrangement original enough that their combination constitutes an
original work of authorship.’” 

(alteration in
original) (quoting Satava v. Lowry, 

, 811 (9th Cir. 2003)).
“Put another way, what a selection and arrangement copyright protects
is the particular way in which the artistic elements form a coherent
pattern, synthesis, or design.”

viable arrangement and selection argument here, both
because the unprotectable elements that appear in both the Play and the
Work are not “numerous enough” and because, even if there were an
original “synthesis” of those elements in the Work, it is not present in
the Play. See

the true stories behind the Band’s most
popular songs and the arrangement of those stories in roughly
chronological order is not original, and so not protectable by copyright.
The Work and the Play depict those historical events from different
perspectives, with different characterizations of the people involved, in
different media, and communicating a different overall message.
“Without [a particular, original] arrangement, there is no liability for
taking ‘ideas and concepts’ from the plaintiff's work, ‘even in
combination.’”

(quoting 

–23).
                         CORBELLO V. VALLI                              13

conclusion that any infringement was fair use and did not
explicitly frame its conclusions as rulings on infringement.

   We conclude that all twelve similarities the jury
considered were not infringing, some under an analysis
similar to that used in the district court’s order and others
under what some courts have referred to as the doctrine of
copyright estoppel. 3 We discuss each category in turn.

    A. Application of the Extrinsic Test to Elements of
       the Work that Are Undisputedly Factual

   We first carefully examine whether the alleged copying
or similarities are based on protectable elements of the
copyrighted work. The extrinsic test for substantial
similarity lays out a useful framework for this inquiry.

    “Extrinsic analysis is objective in nature,” and examines
“articulable similarities between the plot, themes, dialogue,
mood, setting, pace, characters, and sequence of events in
the two works.” Funky 

(internal
    3
      We may affirm entirely on the ground that the Play did not infringe
protected aspects of the Work, rather than relying at all on the district
court’s fair use rationale, even though Defendants did not cross-appeal
the infringement verdict. “An appellee who does not take a cross-appeal
may ‘urge in support of a decree any matter appearing in the record,
although his argument may involve an attack upon the reasoning of the
lower court.’” Jennings v. Stephens, 

, 798 (2015) (quoting
United States v. Am. Ry. Express Co., 

, 435 (1924)). The
appellee must file a cross-appeal only if he is “attack[ing] the decree with
a view either to enlarging his own rights thereunder or of lessening the
rights of his adversary.”

neither enlarge
Defendants’ rights nor lessen Corbello’s. The district court granted
judgment in favor of Defendants. As a result of our affirmance on
alternative grounds, it remains true that Defendants are not liable to
Corbello, so all parties remain in the same position they were as a result
of the district court’s judgment.
14                   CORBELLO V. VALLI

quotation marks omitted). “Protectable expression includes
the specific details of an author’s rendering of ideas. . . .
[The court] must take care to inquire only whether the
protectable elements, standing alone, are substantially
similar. In so doing, we filter out and disregard the non-
protectable elements.”

quotation
marks omitted). Non-protectable elements include ideas;
historical facts; common phrases; scenes-a-faire (that is,
“situations and incidents that flow necessarily or naturally
from a basic plot premise” or generic plot line) and
“[f]amiliar stock scenes and themes that are staples of
literature.” Benay v. Warner Bros. Ent., Inc., 

,
624–25 (9th Cir. 2010) (citations omitted), overruled on
other grounds by Skidmore, 

; see also Narell
v. Freeman, 

, 910–11 (9th Cir. 1989).

     As the district court correctly summarized,

        [t]he Work is a work of historical fact, as
        recounted by DeVito with the assistance of
        Woodard’s writing skills. The creative
        aspects of the Work do not generally concern
        things like character, plot, and setting, but
        rather writing style and presentation. Neither
        DeVito nor Woodard created or even claimed
        to have created any characters, plot lines,
        settings, etc.

Though the creative expression that is in the Work—the
“writing style and presentation”—is protected by copyright,
the assertedly historical elements are not.

   Each of the six similarities between the Play and the
Work discussed below fails the extrinsic test for substantial
similarity because each involves only non-protectable
elements of the Work.
                     CORBELLO V. VALLI                        15

        1. Tommy DeVito’s Introduction

    Chapter One of the Work introduces Tommy DeVito
“hanging out on a Jersey Street Corner” with his friends,
“puff[ing] on cigarettes and dar[ing] anyone to mess with
[them,] . . . cool beyond belief.” At the outset of the Play, the
DeVito character addresses the audience, his cool demeanor
on display. Corbello alleged that this description of DeVito
is substantially similar to the one in the Play and so
infringing. But DeVito is not a fictional character whose
personality was created in the Work. This depiction of
DeVito—as Corbello’s expert put it, his “voice, cool
demeanor, and braggadocio”—is not original to the Work,
and so not a protectable element. See 

.
A character based on a historical figure is not protected for
copyright purposes.

Introduction of the Song “Sherry”

    Both the Play and the Work depict Bob Gaudio arriving
late to a rehearsal excited about a new song he just wrote,
“Sherry,” which—no surprise—became a major hit. In the
Work, DeVito recalls that he liked the song but “didn’t think
[they] could get away with it,” because it was “clearly
intended for someone younger than us.” In the Play, DeVito
says it was a “fuckin’ insult” that Gaudio arrived late “with
some bullshit song he wrote fifteen minutes ago.” As the
district court concluded, “[t]he dialogue is completely
different, as is DeVito’s initial reaction to the song.” The
only similarities are unprotectable historical facts: Gaudio
wrote the song at the last minute, he was late to rehearsal,
and the song was ultimately successful. See 

.
16                     CORBELLO V. VALLI

         3. Introduction of the Song “Big Girls Don’t
            Cry”

    The Work recounts that Bob Crewe, a producer and
songwriter who worked with the Four Seasons, was inspired
to write the song “Big Girls Don’t Cry” after watching a
movie in which a female character dramatically says exactly
that—“big girls don’t cry.” In the Play, Gaudio tells the
audience a transformed version of this story—Gaudio was
the person who saw the movie, it was a John Payne movie,
and Rhonda Fleming was the actress who delivered the line.
Both the Play and the Work report that Crewe and Gaudio
co-wrote the song. As the district court correctly concluded,
the “only similarity is the unprotectable historical fact that
the song was inspired by the Rhonda Fleming line.” That
similarity does not include any protectable element of the
Work. 4 See 

.

         4. Comparisons between the Four Seasons and
            the Beatles

    The Work states that “[i]n the Beatles we are not just
competing against another band; the Beatles come to
represent a whole social movement. [The Four Seasons]
never aspire to be more than entertainers.” In the Play, the
Gaudio character describes the competition between the
Band and the Beatles, telling the audience,


     4
       In writing the Work, Woodard relied on notebooks he had
assembled containing research and articles about the Four Seasons. His
research notebooks included an article that quoted Gaudio telling this
story. Just as Woodard, writing the Work, was able to recount historical
events documented in another author’s work, it is not infringement for
the writers of the Play to use the Work as a source for this historical
event.
                    CORBELLO V. VALLI                     17

       We weren’t a social movement like the
       Beatles. Our fans didn’t put flowers in their
       hair and try to levitate the Pentagon. Maybe
       they should have. Our people were the guys
       who shipped overseas . . . and their
       sweethearts. They were the factory workers,
       the truck drivers. The kids pumping gas,
       flipping burgers. The pretty girl with circles
       under her eyes behind the counter at the
       diner. They’re the ones who really got us,
       who pushed us over the top.

     The similarities between the Work’s allusions to the
Beatles and the longer, more detailed and more evocative
comparison in the Play are the words “social movement” and
the unprotectable historical fact that the two music groups
competed for record sales and chart placements. See Harper
& 

. Even if the Work was the first to
describe the Beatles as representing a “social movement”—
which is neither proven nor disproven in the record—this
concept is an idea unprotectable by copyright. See

that idea could be protected if it was original
to the Work, but use of the phrase “social movement” is all
but inevitable in the presentation of that idea. The words
“social movement” thus form an unprotectable common
phrase describing an idea. “Ordinary phrases are not entitled
to copyright protection.” 

. Grosso v.
Miramax Film Corp., 

(9th Cir.2004), for
example, held that there was no substantial similarity where
“the only similarities in dialogue between the two works
come from the use of common, unprotectable poker jargon,”

                 CORBELLO V. VALLI

       5. Introduction of the Song “Dawn”

    The Work recounts that the Beatles had “hit the public
consciousness like a load of bricks” when the Four Seasons
song “Dawn” was ready for release. The Work then goes on
to describe competition between the two bands in the
Billboard charts, noting that “Dawn” charted third,
“sandwiched in by the Beatles at number one, number two,
number four and number five!”

     In the Play, Gaudio says, “Around this time, there’s a
little dust-up called the British Invasion. Britannia is ruling
the airwaves. So we start our own American Revolution. The
battle begins on a Sunday night at eight o’clock, and the
whole world is watching.” The scene shifts to historical
footage of Ed Sullivan introducing the Band, which then
performs “Dawn.”

    Again, it is an unprotectable historical fact that the
Beatles and the Four Seasons generally competed for chart
placement. That “Dawn” charted against songs by the
Beatles is similarly an unprotectable historical fact. See

. No protectable elements of the
Work share any similarity with the “American Revolution”
scene in the Play.

       6. Description of the Rock and Roll Hall of Fame
          Induction Ceremony

    Both the Play and the Work depict the Four Season’s
induction into the Rock and Roll Hall of Fame in 1990. The
Band’s members reunited at the induction ceremony and
performed for the first time in many years. These historical
events are not protectable by copyright. See Harper & 

; 

.
                    CORBELLO V. VALLI                       19

    In the Work, DeVito describes “reunit[ing] with Frankie
Valli, Bob Gaudio, Nick Massi and Bob Crewe for the first
time since 1965. I felt like I was stepping from a time
machine.” In the play, as the Band performs, DeVito asks,
“Is this like being in a fuckin’ time machine, or what?” The
idea that band members performing together after many
years apart would evoke the feeling of a time machine flows
naturally from the plot premise of a band reuniting and is
classic scenes-a-faire. See Cavalier v. Random House, Inc.,

, 823 (9th Cir. 2002). And as the district court
correctly ruled, the words “time machine” constitute an
ordinary phrase and so is not protectable. See 

; 

.

   B. Application of the Extrinsic Test to Claimed
      Fictions Represented to be Facts—So-Called
      “Copyright Estoppel”

    Other circuits, and district courts in this circuit, have
employed a doctrine of copyright law sometimes called
“copyright estoppel.” Under the doctrine, elements of a work
presented as fact are treated as fact, even if the party
claiming infringement contends that the elements are
actually fictional. An author who holds their work out as
nonfiction thus cannot later claim, in litigation, that aspects
of the work were actually made up and so are entitled to full
copyright protection. See Nash v. CBS, Inc., 

,
1541 (7th Cir. 1990); Hoehling v. Universal City Studios,
Inc., 

, 979 (2nd Cir. 1980); Idema v.
Dreamworks Inc., 

, 1183 (C.D. Cal.
2001); Houts v. Universal City Studios, Inc., 

, 30–31 (C.D. Cal. 1984); Lake v. Columbia Broad. Sys.,

, 708–09 (S.D. Cal. 1965); Oliver v. Saint
Germain Found., 

, 299 (S.D. Cal. 1941).
“Given an express representation that the work is factual, the
20                  CORBELLO V. VALLI

case law indicates that the author will be estopped from
claiming fictionalization, even if most readers would not
believe the representation.” 1 Nimmer on Copyright § 2.11.
Claimed fictions that have been treated as facts for copyright
purposes under this approach include a novel hypothesis
about the cause of the Hindenburg explosion, 

–79; a theory that John Dillinger was not killed
by law enforcement and instead retired to the West Coast,

, 1541; a “true crime” book with
fantastical stories, 

; and
representations that the author was the scribe of a spiritual
power, 

.

    In legal parlance, “estoppel” encompasses various
equitable doctrines that ordinarily include as an element
detrimental reliance. See, e.g., Barnes v. Yahoo!, Inc.,

, 1099 (9th Cir. 2009), as amended (Sept. 28,
2009); see also Restatement (Second) of Contracts § 90
(1981). “Estoppel” is not, in our view, an apt descriptor for
the doctrine at work here. For one thing, as the court
correctly observed in Houts, detrimental reliance is not an
element of this doctrine, as “the [so-called] estoppel [is]
created solely by plaintiff’s affirmative action and
representation that the work was 

.
For another, application of estoppel concepts often suggests
that the party against whom estoppel is applied is in some
way culpable. See, e.g., Santa Maria v. Pac. Bell, 

, 1176 (9th Cir. 2000) (equitable estoppel looks to
“evidence of improper purpose on the part of the
defendant”); Russell v. Rolfs, 

, 1037 (9th Cir.
1990) (judicial estoppel “protect[s] against a litigant playing
‘fast and loose with the courts’” (quoting Religious Tech.
Ctr. v. Scott, 

, 1311 (9th Cir. 1989) (Hall, J.,
dissenting))).
                     CORBELLO V. VALLI                       21

    There are core concerns of copyright law, not equitable
or estoppel principles, that, in our view, animate the
misnamed “copyright estoppel” analysis. “[C]opyright . . .
encourages others to build freely upon the ideas and
information conveyed by a work,” 

–
50, “‘[t]o promote the Progress of Science and useful Arts,’”

(quoting U.S. Const. Art. I, § 8, cl. 8). It 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, contending after the completion of the
copyrighted work, and against the work’s own averments,
that the purported truths were actually fictions.

Copyright protects the creative labor of authors; it does not
protect authors’ post-completion representations about the
lack of veracity of their own avowedly truthful work.

    We find this copyright-grounded rationale for this
principle compelling and so adopt the doctrine. Rather than
“copyright estoppel,” we will refer to this rule of copyright
law as the “asserted truths” doctrine, because it is the
author’s assertions within and concerning the work that the
account contained in the book is truthful that trigger its
application.

    Here, the text of the Work explicitly represents its
account as historically accurate, not historical fiction. In the
Work’s early pages, the DeVito narrator describes the Work
as the “complete and truthful chronicle of the Four Seasons.”
He promises not to allow “bitterness to taint the true story,”
and notes his “candor.” Both Corbello’s husband and she
herself sent potential publishers cover letters emphasizing
that the Work provided a behind-the-scenes factual look at
the Band, promising “disclosure[]” of “the truth about”
several events, including the “secret past that these
22                      CORBELLO V. VALLI

performers successfully hid for almost three decades.”
Consistent with those promises of truthfulness, the Work
reads as a straightforward historical account and is presented
as an autobiography, with DeVito listed as a co-author. So
the Work was expressly and repeatedly held out as a factual
account. 5

    Corbello argues strenuously that the asserted truths
doctrine cannot apply in this case because the Work was
never published. She argues that only representations of
truth made to the public trigger the asserted truths doctrine,
and that there was no representation to the public because
the Work was unpublished.

    This suggested limitation of the asserted truths doctrine
to published works has no basis in either the case law or the
doctrine’s copyright law foundations. As to the case law,
Corbello does not point to any case supporting the limitation,
and we are not aware of any. One district court, in an
unpublished opinion, characterized the doctrine as
“normally applied to . . . a plaintiff who represented to the
public that his work was factual.” Garman v. Sterling Pub.
Co., No. C-91-0882 SBA (ENE), 

, at *3
(N.D. Cal. Nov. 5, 1992) (emphasis added). Aside from the
nonbinding nature of its source, this passing reference to “the
public,” does not suggest that publication is a prerequisite to
the application of the asserted truths doctrine; “the public”

     5
      We note that the asserted truths doctrine would not cover fictional
works that use claims to truthfulness as a literary device, like the Orson
Welles radio broadcast of “War of the Worlds.” See Terror by Radio,
N.Y. Times, Nov. 1, 1938, at A22. We are not required, in this case, to
decide what the outer limits should be of the test for whether a work’s
representations for truthfulness are sufficient to support the application
of this rule. We hold only that the representations here are definitely
sufficient.
                    CORBELLO V. VALLI                      23

could include actual or intended readers of work, including
works not mass produced for sale.

    As to the copyright origins of the doctrine, the suggested
publication limitation appears to rest on the detrimental
reliance and culpability concepts connected to the “estoppel”
locution. But we have rejected both the terminology and its
related implications as not pertinent to the asserted truths
copyright principle as we understand it.

     Rather than treat prior publication as dispositive, we
examine the representations made by a work, whether made
only to a few actual readers, to future intended readers, or,
upon publication, to the general public. In this case, again,
the Work made unequivocal representations of truthfulness.
The Work’s emphatic and express representations of
truthfulness were made both to potential publishers and to
readers of the unpublished manuscript, as well as to future
readers of the Work if published. Those representations
were, as described earlier, central to the manuscript’s claim
to readers’ attention and appreciation. And the
representations applied to the book as a whole, a
consideration emphasized in the case law. In Houts, for
example, the district court stressed that the book had been
held out as completely factual, because its jacket described
the book as containing “real life detective stories,” the book
had the notation “N-F” for nonfiction on its spine, and the
first page proclaimed that the book “shows that truth can be
more brutal than 

–29 (emphasis
in original). Similarly, Lake held that a plaintiff could not
claim copyright protections for portions of a book about
Wyatt Earp as fictionalized because the book’s preface
promised “an accurate historical biography based on a
factual account of Wyatt Earp’s career [that was] ‘in no part
a mythic 

.
24                   CORBELLO V. VALLI

    Just as the court in Houts determined that “[g]iven these
broad and inclusive representations [that the book is factual],
the reader is compelled to conclude that the entire book is

, here the Work presents itself to the
reader as a reliable source of factual information about the
Four Seasons. So, when DeVito, an owner and co-author of
the book, gave it to the Play’s writers as they researched the
history of the Four Seasons, they had reason to view it as a
factual source, even better than newspaper or magazine
articles, because it was co-written by a participant in the
events described. Whether a Work is published may inform
how its readers perceive and evaluate any claims of
truthfulness—for example, a reader may discount such
claims made in an unpublished work that appears to be an
unfinished draft, or find assertions that a book is nonfiction
particularly compelling if the publisher has a strong
reputation for fact-checking its publications. But publication
alone is not dispositive of whether this doctrine applies.

     Relatedly, the asserted truths doctrine applies not only to
the narrative but also to dialogue reproduced in a historical
nonfiction work represented to be entirely truthful. As
detailed above, even dubious assertions of truthfulness can
prevent an author from later claiming that part of a work is
fiction. See, e.g., 

, 299. The
asserted truths doctrine thus includes dialogue that an author
has explicitly represented as being fully accurate, even if the
author was unlikely to have recalled or been able to report
the quotations exactly. Courts have applied the doctrine to,
for example, dialogue surrounding the death of Pope John
Paul, see Crane v. Poetic Prods. Ltd., 

,
595 (S.D.N.Y.), aff’d, 351 F. App’x 516 (2d Cir. 2009), and
to other purportedly accurate conversations, even where the
author “could not possibly have been present to experience”
them, 

.
                    CORBELLO V. VALLI                      25

    As the court observed in Houts, this dialogue corollary
follows from “the very nature of biographical works that
involve any historical perspective. All historical renditions
would be deemed fictionalized under [a contrary] theory
merely because the author was not there personally.”

purported nonfiction to investigate the
accuracy of each quoted statement in a work that presents
itself as completely true and accurate nonfiction would
frustrate the pro-creation goals of copyright law. “To avoid
a chilling effect on authors who contemplate tackling an
historical issue or event, broad latitude must be granted to
subsequent authors who make use of historical subject
matter.” 

.

     There may be instances in which extensive dialogue—
for instance, dialogue in a biography of an ancient
politician—necessarily indicates that a work is partially
fictional. But this is indubitably not such a case. Here, the
Work purports to accurately document conversations in
which its co-author, DeVito, actually participated. Because
of the autobiographical representation that is central to the
Work, the assertions of accuracy carry extra force, and the
asserted truths doctrine applies to the dialogue as well as to
the narrative.

    Each of the six similarities between the Play and the
Work we next discuss fail the extrinsic test for substantial
similarity because, whether or not actually factual, they
involve—sometimes in combination with other non-
protected features—elements of the work held out as facts
and so not protectable.
26                   CORBELLO V. VALLI

       1. DeVito’s Introduction of Valli to Mary and
          Mary’s Characterization

    In the Work, Valli first sees Mary Mandel, a friend of
DeVito’s current girlfriend, while hanging out with DeVito
at a “hotdog joint.” Valli asks DeVito about her; DeVito
reports that Mary is several years older than Valli, has a
daughter, and “comes from a rotten family; her two brothers
are junkies and a lot of her people are in prison. She talks
kind of rough herself, but she seems nice.”

    In the Play, Valli notices Mary Delgado—a composite
character of two of Valli’s ex-wives—at a show, and DeVito
warns him away but ultimately introduces them. Valli then
takes Mary on a date. No dialogue is alleged to have been
copied. The only similarity between the two accounts is the
fact that Valli asked DeVito about a woman named Mary.

    The Work and the Play characterize Mary and her
relationship with Valli very differently. The Work depicts
Mary Mandel as “mean spirit[ed]” and highly critical of
Valli, causing him to become more reserved and “quenching
the sparkle in his eye.” The Play does not portray Mary
Delgado negatively, although it does depict an argument
between Valli and Mary before the couple divorces. Gaudio
reports to the audience that Valli told the other band
members his divorce was “for the best,” but they knew “that
wasn’t the whole story”; Valli’s character then sings a love
song, indicating he had loved Mary and was sad about the
divorce.

    As the district court correctly concluded, “the Play
copied no creative expression from the Work in relation to
Valli’s introduction to or relationship with Mary. The Play
used its own creative expression in telling the story of Valli’s
interest in Mary, DeVito having warned him away, and any
                    CORBELLO V. VALLI                       27

conflict between Valli and Mary. The historical facts of these
events are not protectable by copyright.”

    At his deposition, Valli testified that DeVito did not in
fact introduce him to Mary Mandel, and that he couldn’t
remember whether DeVito helped set them up. Whether
Valli’s recollection is correct or not does not affect whether
the Work’s version is protectable as an original creation of
the writers. DeVito may have remembered events differently
than Valli did, or he may have reported his memory to
Woodard inaccurately, or he or Woodard may have invented
the story that he introduced Valli and Mary. Any such
inconsistency, inaccuracy, or invention does not transform
what was represented in the Work as a completely truthful
account into creative fiction protectable by copyright. Facts
presented in a historical work, “whether correct or
incorrect,” may be used by subsequent authors without
infringing. 

; see also Idema, 162 F.
Supp. 2d at 1183. As the Work holds it out as true that
DeVito talked to Valli about Mary, that asserted fact is
unprotectable under copyright law.

       2. DeVito’s Intercession After Valli’s Arrest

    Both the Play and the Work relay a story about DeVito
helping Valli after he was arrested. In the Work, DeVito says
that “Frankie Valli and a kid named Lamonica get arrested
for stealing. [Valli’s mother] calls me very worried, so I tell
her I’ll look into it. She’s terrified Frankie will get sent
away.” DeVito knows the probation officer writing Valli’s
presentence report and convinces him to recommend
probation. In the Play, DeVito promises Valli’s mother he
will watch out for him, then pressures Valli to join DeVito
in robbing a jewelry store. After they are caught, DeVito tells
the judge, “Your Honor. Please. The kid didn’t know what
28                   CORBELLO V. VALLI

he was doing. I conned him into it.” Valli gets probation and
DeVito goes to prison.

    The only similarities are the unprotectable historical fact
of intervention by DeVito on Valli’s behalf and Valli’s
probation sentence. That Valli testified at his deposition that
neither story is accurate does not change this analysis.
Again, if DeVito’s memory of events differs from Valli’s,
then the account in the Work is either inconsistent with
Valli’s, but accurate, or it is inaccurate. Either way, it is not
protectable creative fiction. See 

–
79. As the Work holds it out as true that DeVito helped Valli,
that asserted fact is not copyright protectable.

        3. The “Roman Orgy” Scene

    Both the Work and the Play depict a party the record
label threw for the Band during their first nationwide tour.
At the party, DeVito encourages a shy Gaudio to approach a
girl. The Work compares the party to “a Roman orgy,” and
describes a naïve and embarrassed Gaudio sitting on the
ground “look[ing] like he is going to throw up.” DeVito asks,
“‘What’re you doing? Grab a girl and have a good time.’ . . .
[Gaudio] eventually gets up and leaves with one of the girls.
He reminds me of a condemned man leaving for his last
meal. I didn’t know whether it was from his youth or
shyness, but Gaudio is definitely not in a party mood.”

    The Play takes a more graphic approach. The party scene
is set to the song “December, 1963 (Oh, What a Night).”
DeVito tells Gaudio to “grab some Christmas cheer,” and
Gaudio is approached by a girl and eventually loses his
virginity off stage, with DeVito and Massi reporting his
progress to the audience using space travel metaphors.
                     CORBELLO V. VALLI                       29

    As the district court correctly noted, that the party took
place is an unprotectable historical event. That is also true of
the account that Gaudio left the party with a girl. The only
similar dialogue in the two accounts are the “grab a
girl”/“grab some Christmas cheer” lines, which share only
the word “grab.” This loose similarity does not involve any
protectable elements of the Work, both because the Work
represents as historical fact that DeVito told Gaudio to “grab
a girl,” and because “grab a girl”—actually, “grab”—is an
unprotectable ordinary phrase. See 

.

       4. Fake Murder in Valli’s Car

    The Work and the Play both depict an incident in which
some men attempt to extort money from Valli after staging
a fake murder in his car. In the Work, Valli’s car is being
driven by a friend, and Valli and two other people are
passengers. An argument between the two men in the front
seat ends when the passenger says, “Well, asshole, what do
you plan to do about it?” and the driver shoots him. A few
days later, the driver and the other passenger ask Valli for
money in exchange for their silence. Valli turns to DeVito,
who contacts Ray DeCarlo, a mobster. DeCarlo says he
knows the men, assures Valli it was a scam and that the man
was not really killed, and arranges for Valli’s car to be
returned to him unharmed two days later. The Play recounts
a version of the same story, and the “victim” similarly says,
“Yeah, asshole, what’re you gonna do about it?” before
being shot.

    The incident itself is an unprotectable historical event,
see 

, and Valli himself has told the
story many times, including to the writers of the Play. The
only similar expression is the “asshole” line. That line alone
is unprotected by copyright because the Work holds it out as
historically accurate dialogue. The Play may have “taken
30                   CORBELLO V. VALLI

facts and ordinary phrases from [the Work], but [it] has not
taken protected expression.”

and 6. The Dialogue Surrounding the Song
                  Title and Subject Matter of the Song
                  “Walk Like a Man”

    The Work and the Play feature a similar portrayal of the
origin of the title of the song “Walk Like a Man,” written by
Gaudio. The Work describes the Band kidding Gaudio about
the title but does not attribute the teasing to a specific person:

        “‘Walk Like A Man?’. As opposed to what
        — like a woman?”

        “No, no,” explains Gaudio defensively, “the
        song is directed to teenage boys who need to
        walk and talk like men.”

        “In other words, instead of like girls.”

        “No! Instead of like boys. This song is going
        to serve as an anthem for every teenage boy
        who has let some girl twist him around her
        little finger!”

The Play features similar dialogue, but portrays DeVito as
mocking Gaudio rather than playfully teasing him:

        TOMMY: I don’t get it.

        BOB: What don’t you get, Tommy?

        TOMMY: The title, Walk like a man. . . . As
        opposed to what — a woman?
                    CORBELLO V. VALLI                      31

       BOB: It’s for boys, Tommy. Teenage boys.
       We’re telling them to act like men.

       TOMMY: Instead of like girls.

       BOB: Instead of like boys. Why are you
       doing this?

       CREWE: Look, Miss Congeniality — it’s a
       metaphor. This is an anthem for every guy
       who’s ever been twisted around a girl’s little
       finger!

    The parties do not dispute that this conversation actually
happened, so the event itself is not protectable. They do
dispute whether the particular language used in the Work
was original expression, rather than a report of what was
actually said. Corbello claims that the dialogue was
“Woodard’s invented banter,” and thus protected
expression. DeVito testified that he did not remember
supplying Woodard the words “anthem” or “twisted around
a girl’s finger.” Gaudio testified that the dialogue does
reflect the substance and language of the actual
conversation, and that he described the argument using these
phrases to the writers of the Play.

    We need not resolve this factual dispute. Whether the
dialogue accurately represents what was actually said does
not change our analysis. The dialogue is held out by the
Work as a historically accurate depiction of a real
conversation. The asserted facts do not become protectable
by copyright even if, as Corbello now claims, all or part of
the dialogue was made up.
32                      CORBELLO V. VALLI

III.       Conclusion

    Given the Work’s emphatic representation that it is a
nonfiction autobiography, the Play did not infringe on any of
the protected expressive elements of the Work, even if the
writers of the Play “appropriated [Woodard’s] historical
research.” 

. As the similarities
between the Play and the Work involve only elements of the
Work not protected by copyright, we affirm the district
court’s grant of JMOL. 6

       AFFIRMED.




       6
       Because we affirm, we do not reach the questions whether the
district court erred in granting JMOL that Valli and Gaudio had not
committed infringement, whether the district court abused its discretion
in ordering a new trial, or whether this case should be reassigned to
another district judge.