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Viewpoint: Whose idea is it, anyway?

Entertainment lawyer Nicole Page explores the theme of idea theft in U.S. copyright law, and illustrates how content creators can guard against such claims and protect their IP in the process.
March 30, 2015

I am often asked, “Why do I need to sign a submission release before a network or production company will hear my pitch?” The simple answer is because of the potential for a claim of idea theft. The American TV industry is replete with stories of the stolen idea and no broadcaster or producer wants to get sued.

When it comes to understanding the concept of idea theft, there is a key distinction to be aware of out of the gate, and that’s the difference between copyrightable materials and ideas. Under U.S. Copyright Law, ideas are not protectable. Instead, it is only the expression of an idea in a fixed, tangible medium that is deemed worthy of protection under the Copyright Act. Specifically, while an idea for a series about survivalists is not eligible for copyright protection, a written proposal for a series like Survivor, embodying original elements and a unique format, is protected by copyright.

While copyright claims are based on a copying of intellectual property (i.e., an original screenplay) and are governed under federal copyright law, idea theft claims are state law breach of contract claims. An idea theft claim might come into play when, for instance, a producer meets with a development executive to pitch a project, the executive passes and then a suspiciously similar series appears on the air. In some cases that exact situation could give rise to a claim of idea theft. In general, if one believes his or her idea has been stolen and seeks to allege a claim of idea theft, that person would need to show that a) he or she met with or submitted a concept to a network or production company with the understanding that if the idea from the pitch was used, that person would receive compensation; b) following the meeting, the complainant’s idea or a substantially similar version of it is used without his or her consent and without compensation.

In a case that terrified networks and prodcos alike, NBCUniversal (NBCU) and Pilgrim Films & Television were sued for idea theft in connection with the Syfy series Ghost Hunters. The litigation went on for more than seven years and during that time, the Ninth Circuit ruled that if the plaintiffs pitched their concept understanding that there was “an implied promise” that the defendants would partner with them on development, the plaintiffs should be allowed to proceed with their idea theft claims.

That 2011 decision set off shockwaves through the entertainment industry. Fearing an avalanche of such claims, NBCU attempted to appeal to the U.S. Supreme Court, which declined to hear the case.

Throughout, Pilgrim CEO Craig Piligian maintained that neither he nor anyone else at Pilgrim had ever even met the plaintiffs, and that he’d independently created and developed the idea for Ghost Hunters several years prior. Subsequently, the trial court acknowledged there had been no communications between Piligian/Pilgrim and the plaintiffs, regarding the show concept or otherwise, and the prodco and its CEO were dismissed from the lawsuit.

The case was dismissed by the California Appeals Court in April of 2014 on statute of limitations grounds. But the legal basis for idea theft claims in California persists.

There are clear occasions under which an idea theft claim will fail; for instance, if the network or producer being pitched has not asked to hear the pitch. For example, if while at a television conference, you bump into a development executive and before the poor woman has a chance to even register who you are, you spew out your elevator pitch, and later her network broadcasts a show similar to your pitch, your idea theft claim will not succeed. There must be a “meeting of the minds” between you and the person you are pitching that your concept will not be used without compensating you. Without that mutual understanding, no contract has been created; thus, no contract can be breached.

To be clear, an actual written agreement is not necessary. Under the law, it is enough that what is known as an implied-in-fact contract exists. As long as both parties understand that the purpose of a pitch meeting is that if the potential buyer uses the seller’s concept, the seller will be compensated, an implied-in-fact contract will be deemed to exist.

This underscores the broadcaster submission release requirement. Says VH1′s Seth Levin, SVP, business affairs and deputy general counsel: “Idea theft is an issue we take very seriously and for that reason our general policy is to not accept unsolicited ideas. We counsel our development execs to be very upfront in their discussions with producers and to articulate that we may already have similar shows in development.”

Also, an idea must have at least some degree of originality. If your pitch to a net is “a show about living off the grid in Alaska,” and the network later airs Alaska Bush People, you are out of luck.

But if you present a more detailed pitch such as: “a show about a family of little people who live off the grid on Alaska’s last remaining glacier, befriend polar bears and conduct makeovers on the locals” (don’t steal that one!), you would have a better chance at stating an idea theft claim if the net you pitched then airs an almost identical show.

In my practice, I have found idea theft in non-fiction TV to be very problematic. It is the nature of the business that producers and development executives work at many different production companies or networks over the course of their careers. It is not uncommon for freelancers to work at three or four different companies in any given year. So where did an idea come from and who owns it? This question has to be carefully considered in every instance. As a prodco, the last thing you want is to sell a series to a network only to have someone come out of the woodwork claiming ownership of the concept. Networks do not want to be the target of lawsuits and will avoid proceeding with a concept if there is a cloudy chain of title – meaning, it’s unclear who originated the concept and who actually owns it – in order to insulate themselves from liability.

While you can never completely protect against lawsuits, here are some tips that will help minimize the risk of an idea theft claim:
Document independent creation
Independent creation is a defense against idea theft. If a claim is made and you are able to show that your concept was created independently of any idea submitted by a third party, an idea theft claim can be defeated. Independent creation can be shown in different ways, such as in email correspondence that could demonstrate how and when you first came up with the show’s concept.

Put it in writing
Production companies should seek to prevent a situation where someone who has worked for them later claims ownership rights in a project developed while the individual was working with the company. If you are engaging independent contractors, have those individuals sign “work for hire” agreements that clearly state that any projects created while the individual is working for the producer are owned exclusively by the production company.

I’ve worked with too many producers who have found themselves on the other side of one type of frivolous claim or another. The gatekeepers are more and more fearful of accepting pitches from anyone without a lawyer or an agent. That limits the pool of producers that networks will buy from and makes it more difficult for less established producers to break through.

While no one wants to see the fruits of creativity and hard work taken without compensation, I am not sure that idea theft claims are the answer, and certainly, the threat of expensive litigation creates a general chilling effect that is likely of no benefit to anyone.

Nicole Page is head of entertainment and media law at Reavis Parent Lehrer LLP, and an independent TV and digital content development consultant.

About The Author
Managing editor with realscreen publication, an international print and online magazine that covers the non-fiction film and television industries. Darah is an award-winning journalist who has spent over two decades covering a wide range of issues from real estate and urban development to immigration, politics and human rights, primarily with The Vancouver Sun. Prior to joining realscreen, she was editor of Stream Daily, realscreen's sister publication covering the dynamic global digital video industry. She also served a stint as a war reporter in Afghanistan for television and print, and was a national business blogger with Yahoo Canada.

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