By: Barry J. Heyman, Esq. and Justin Joel
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New ideas are the lifeblood of the television and film industries. At a pitch meeting, a writer presents ideas for a new show or movie to a producer of a network or studio. At a successful pitch meeting, the producer accepts the writer’s ideas and agrees to turn it into a show or movie. The producer promises to compensate the writer for using his or her idea and the network or studio hopes to reap the financial rewards that accompany a successful show or movie. Oftentimes, however, the producer decides to pass on the idea submission and no agreement is reached.
Disputes arise when the producer later makes a show or film that the writer believes is based on his or her ideas. “Idea submission” cases result when the network or studio has not obtained permission from or compensated the writer for use of that idea. Although copyright law protects the writer’s particular expression of an idea, it does not protect ideas, concepts, or themes. As such, a writer who pitches a story idea is susceptible to idea theft. The good news for the writer is that while ideas are not protected by copyright law, they can be the subject of a contract. Thus, a contract between the writer and producer can provide that the writer be compensated for his or her ideas.
There are two ways in which a contract may be created in an idea submission case. First, the writer can obtain from the studio a written or an oral promise that the writer will be compensated if their idea is used. Second, if no such agreement is created, an “implied contract” may exist if the parties’ conduct and the circumstances surrounding the pitch indicate a mutual understanding that there is an expectation that if the idea is later used, the writer would be compensated.
After the passage of the 1976 Copyright Act, the applicability of the implied contract claim was called into question since this federal law “preempts” or trumps state law causes of action that seek to protect rights equivalent to those protected by copyright law. The Copyright Act sets forth the following two requirements that, if satisfied, will result in the preemption of a state law claim: (1) the claim involves subject matter of copyright and (2) the state law grants legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright.
The following two recent cases in California and New York involve idea submission cases and illustrate the courts’ seemingly conflicting decisions.
Montz v. Pilgrim Films & Television (CA, May 2011)
Plaintiffs Larry Montz and Daena Smoller sued NBC Universal (“NBC”) and producer Pilgrim Films & Television, claiming that they had given NBC the idea for the reality show Ghost Hunters with the understanding that they would partner with the network to produce the show. When the network produced the show without them, Montz and Smoller asserted a claim for breach of an implied contract. Since analyzing similarities between copyrighted works and the allegedly stolen ideas can prove difficult for the writers to achieve a favorable outcome, the writers preferred to assert a claim for a breach of an implied contract rather than a copyright infringement claim. The court found that the implied contract claim was not preempted by a copyright infringement claim because it required proof of an additional element beyond that required in a traditional copyright claim. Specifically, the court found the additional element of an implied promise by the network of granting a partnership interest to the writers in the proceeds of the production for the use of the disclosed ideas.
Forest Park Pictures v. Universal Television Network, Inc. (NY, May 2011)
In this case, a production company and two individuals pitched an idea for a show to USA Networks (“USA”). The show was about a doctor who relocates to Malibu and makes house calls to the rich and famous. USA passed on the idea, but distributed a show, Royal Pains, four years later about a doctor who relocates to the Hamptons to become a doctor to the stars. The plaintiffs argued that USA breached an implied contract which was created when the network agreed to hear the pitch with knowledge that they expected to be compensated for use of their idea. However, unlike in the Montz case, the court found that the claim to protect characters and storylines was within the subject matter of copyright and that federal law preempted a state law claim. Since the plaintiffs did not bring a copyright infringement claim, the court dismissed the case.
The conflict as to whether federal copyright law preempts state law breach of contract claims is likely to continue. Since New York and California courts hear most of the idea submission cases, and because these courts are diverged on this issue, it may be that the Supreme Court would be willing to hear this issue.
However, regardless of whether the Supreme Court hears a case on this issue, here are some tips for studios and networks to help prevent liability and litigation and for writers to protect their ideas.
The Montz decision, if followed by other courts, would make it easier for writers to assert implied contract claims against studios and networks for stealing their ideas, so studios may want to be more aggressive in requiring writers to sign submission releases before allowing them to pitch their ideas. Such agreements would specify that the studio or network may have received similar ideas from other sources, and is not liable to the writer if it uses these ideas. Studios and networks may also wish to require that writers waive their right to an implied contract claim in exchange for the studio or network agreeing to hear their pitch.
The best position for the writer is to get the network or studio to sign a written agreement stating that the writer will be compensated if their idea is used. However, some writers may find it awkward to begin a meeting by asking a producer to sign a contract and some producers may be offended by this approach. If securing a written agreement is not viable, a less hostile approach for the writer would be to enter into an oral agreement with the network or studio. In this instance, before the writer pitches the idea, they would tell the studio that they expect to be compensated if the idea is used. If the producer expresses agreement to this arrangement, a contract is created. The writer should follow up after the meeting and thank the producer for their time, reminding them of the terms of the agreement, and ask them to confirm it in writing.
Since ideas are not copyrightable but expressions of the ideas are, a writer may want to embellish upon their ideas and then register the story with the Copyright Office and Writers Guild of America before they discuss it with anyone. Also, the writer should put a copyright notice on his or her work to prevent anyone from claiming innocent infringement. To deter possible idea theft, writers should also look into being represented by an agent or entertainment attorney.
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