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I
INTRODUCTION
I was recently
asked to represent a young writer whose
idea for a new television series had, in
his words, been "ripped off."
It seems he had written several teleplays
but his contacts were limited and his works
had not sold. The problem was familiar to
anyone in his position: No producer would
read the material unless it were submitted
by an agent, but no agent would represent
him since he had no professional experience
or credits. When he was finally referred
to a well-known agent he thought his luck
was about to change. He assembled three
of his best scripts and submitted them as
writing samples.
To his profound disappointment, he quickly
received what appeared to be a form letter
explaining that the agent liked his material
but would not be able to represent him.
A year passed and the young writer was still
struggling. One day he was reading about
television shows debuting in the Fall when
his attention focused on a particular new
series the critics were hailing as likely
to be a big success. The concept would have
sounded unusual to most people but it was
awfully familiar to my prospective client--it
sounded remarkably like one of his teleplays!
When he saw the pilot episode he was convinced
someone had stolen his idea. While none
of the writers or producers were familiar,
some quick investigation uncovered that
virtually every major participant in this
new show, both behind and in front of the
camera, was represented by the agent to
whom the young writer had given his writing
samples. The series went on to become a
big hit, and the writer was convinced the
agent had stolen his idea and had given
it to his established clients to create
and produce the new show (for which the
agent received a huge packaging fee). He
was probably right. It most likely happened
just as he suspected.
But I still had to tell the disappointed
writer he had no legal claim.
The truth is, despite the attention a small
number of highly publicized cases continue
to receive in our celebrity-crazed media,
ideas are protected in only the most limited
of circumstances, and most potential lawsuits
will either never be filed or will suffer
a quick and inglorious death. Nonetheless,
idea submission cases can be won in the
right circumstances, resulting in substantial
verdicts, and will continue to be popular
alternatives when a claim under the Copyright
Act of 1976 is unavailing. The key is to
recognize the act patterns that are likely
to result in a successful idea submission
case.
< Back to top
II
IS IT COPYRIGHT OR IS IT IDEA SUBMISSION?
It is often
difficult to determine whether a client
has a bona fide copyright claim or whether
he must proceed on an idea submission theory.
That is because the line between the two
is often blurred. The test is easy to recite
but difficult to apply. The Copyright Act
does not protect ideas; it protects only
the manner in which those ideas are expressed.
Ideas, on the other hand, are "as free
as the air" and are unprotected except
in the context of certain legally recognized
relationships. Just precisely where an idea
ends and the expression of the idea begins
is often very difficult to determine. One
might file an action in federal court and
allege both a copyright claim and a pendent
state law idea submission cause of action,
but there is a risk: If it is ultimately
determined the case does not rise to the
level of copyright infringement, the court
would most likely be divested of jurisdiction
to hear the rest of the case. If the plaintiff
is forced to refile the action in State
Court, there could be a problem with the
statue of limitations.
There are a number of important similarities
in proving copyright infringement and breach
of implied-in-fact contract. In both cases,
the plaintiff must prove access and similarity
in order to raise an inference of copying
(in a copyright case) or use (in a contract
case). In both, access is proven in the
same way and components of the two works
such as plot, characters, setting, theme,
mood, sequence of events, etc., are compared
to determine if they are substantially similar.
Finally, if access and similarity are shown,
in both cases the defendant will then attempt
to demonstrate that despite outward appearances
the similarities are a coincidence and the
work was independently created.
So how does one know which claim to assert
in a given case? Regardless of the often-cited
tests and standards, in practical terms
the decisive factor will be how pervasive
and substantial are the similarities. A
successful copyright case requires that
the similarities be very substantial and
that there be enough of them to convince
a trier of fact that all of plaintiff's
material, or at least an extensive part
of it, was copied.
In contrast, in an idea submission case,
courts are interested not only in the number
of similarities but in the quality of the
similarities. It has been held that even
though the similarities are quantitatively
small, a successful claim can still be made
if the similarities are qualitatively important.
Conceptually, a single material similarity
can give rise to a claim for breach of implied-in-fact
contract, although the jury would likely
only award modest damages in such circumstances.
Finally, as discussed below, the Copyright
Act has been held to preempt many theories
that were traditionally used to protect
ideas. What is left are theories which focus
on the relationship of the parties and not
on the notion of an idea as a form of property.
< Back to top
III
EVOLUTION OF THE LAW
A. The
Early Cases
In the 1930's and 1940's, California plaintiffs
used such theories as plagiarism, common
law copyright, conversion, unjust enrichment,
and unfair competition in an effort to protect
their ideas. Each of these theories was
predicted in whole or in part on the "idea"
being a form of property. Any meaningful
distinction between the different claims
tended to be blurred by the courts, as they
focused on much the same elements and methods
of proof regardless of the labels. These
theories continued to be discussed in reported
decisions through the 1970's, at which point
they disappeared due to the preemptive effect
of the Copyright Act of 1976, which took
effect January 1, 1978.
An important early case was Yadkoe v. Fields
decided in 1944. Plaintiff had written skits
and comedy routines and submitted them to
comedian/actor W.C. Fields for his consideration.
Allegedly Fields later used some of the
material in a film and in his radio programs.
The jury found for the plaintiff and awarded
damages based on the reasonable value of
the material used. The trial had proceeded
on a theory of "implied contract",
but on appeal the court held it was really
an "express contract" case. The
court proceeded to discuss the plaintiff's
"ideas" as "property"
as though it were a copyright case.
Ultimately the appellate court affirmed
the jury's verdict in favor of the plaintiff.
While the court mixed and confused the precise
theories it was discussing, at least it
properly held that an idea may be protected
where it is the subject of what the court
considered to be an express contract. This
case set the stage for the 1950's, during
which the California Supreme Court launched
the theory of idea-protection which is still
the most prevalent theory today.
B. The 1950's
By, 1950, California courts were generally
analyzing idea submission cases in the context
of claims for plagiarism and common law
copyright. In the decade of the 1950's,
the California Supreme Court decided at
least four major cases. In Golding v. R.K.O.
Pictures, Inc., an action for plagiarism,
the Court focused heavily on how a plaintiff
can prove "use" of his material,
regardless of whether such material is protected
by copyright. The Court discussed in detail
the concepts of "access" and "similarity"
which are still used today to prove "use".
In Stanley v. Columbia Broadcasting System,
Inc., the court held that a major issue
in any idea submission case "is whether
or not plaintiff's idea as such was so new
and novel as to be worthy of protection."
The Stanley decision and its discussion
of "novelty" led directly to two
landmark California Supreme Court cases:
Weitzenkorn v. Lesser, and Desny v. Wilder.
Desny is perhaps the most celebrated case
in the field even today. In these two decisions,
the Supreme Court essentially overruled
(or at least severely limited) its earlier
decision in Stanley. Relying on Justice
Traynor's dissent in Stanley, the Court
held that novelty and originality are not
essential elements in an idea submission
case when the idea is protected by contract.
Several court of appeal decisions in California
have since followed this rule and even today,
the notion that novelty is not a prerequisite
is a major distinction between California
law and New York law, which continues to
require novelty and originality. Desny and
Weitzenkorn make it clear that an idea is
not property but may be protected by an
express contract (written or oral) or an
implied-in-fact contract. Both contracts
may exist regardless of whether there has
been a technical meeting of the minds and
the only difference between the two forms
of contract is that one is established by
the words of the parties and the other is
established by their conduct.
C. The 1960's
The 1960's could be characterized as the
decade of "Sea Hunt", referring
to the popular television series starring
Lloyd Bridges, which spawned three major
appellate decisions between 1966 and 1969.
With the "novelty" issue out of
the way, the courts were now free to focus
on how a plaintiff could prove his case
based on an implied-in-fact contract. In
Donahue v. Ziv Television Programs, Inc.,
Minniear v. Tors, and Donahue v. United
Artists Corporation, there was extensive
discussion of the elements of the cause
of action, jury instructions, and the method
of proving damages. In fact, the Sea Hunt
cases decided in 1968 and 1969 remain thee
only two appellate decisions in California
which address in any detail now damages
can be proven for theft of an idea under
an implied-in-fact contract theory. The
1969 Donahue decision rejected the notion
that "reasonable value" is the
equivalent of "market value" and
held that judges should adopt a flexible
approach in calculating damages. In that
case, the jury award of $2.00 for each of
the 100,000 telecasts of Sea Hunt was held
to be the reasonable value of the ideas
wrongfully used, and the appellate court
affirmed.
D. The 1970's
There were two noteworthy cases decided
in 1970. In Blaustein v. Burton, the plaintiff
alleged he had conceived the idea of producing
a feature film based on Shakespeare's "Taming
of the Shrew", and that the defendants,
to whom the idea was disclosed, wrongfully
used it without paying him. This case forcefully
reaffirmed the rule that an idea, no matter
how slight, common place, or unoriginal,
can be protected by an express or implied-in-fact
contract. In Fink v. Goodson-Todman Enterprises,
Inc., the appellate court went into great
detail in describing how two separate projects
should be compared in order to prove one
was based on the other. Even today, Fink
probably contains the best description of
now such similarity and what kind of similarity
are required for a plaintiff to carry his
or her burden of proof.
In the 1970's, the Supreme Court expanded
the list of potential claims in an idea
submission case to include the theory of
"breach of confidence". In Davies
v. Krasna, the court recognized that even
in the absence of a confidential relationship
between the parties, if an idea is submitted
"in confidence" it may still be
protected form unauthorized use and disclosure.
However, as is evidenced by subsequent appellate
court decisions such as Faris v. Enberg,
Tele-Count Engineers, Inc. v. Pacific Telephone
and Telegraph Company, and Aliotti v. R.
Dakin & Co., such a cause of action can
be stated only in limited circumstances,
demands a fairly high level of proof, and
requires that the idea submitted in confidence
be "novel".
E. The 1980's and Beyond
Finally, since 1980 the appellate courts
have on occasion been asked to review implied-in-fact
contract cases but have not broken any significant
new ground. One exception in the decision
Mann v. Columbia Pictures, in which the
court upheld a trial judge's grant of summary
judgment for the defendants because it found
they had proven an independent creation
defense as a matter of law. A second exception
is Tele-Count, supra, in which the court
upheld the defendant's position that an
idea must be "novel" to support
a claim for breach of confidence. While
plaintiffs have fared well over the years
in most reported decisions, the Mann and
Tele-Count cases serve as a reminder that
the burden of proof is on the plaintiff
and that the elements of the applicable
causes of action are rarely easy to prove.
As discussed in the Mann decision and in
other cases, it appears the Copyright Act
preempts most state-law theories including
unjust enrichment, plagiarism, common law
copyright, unfair competition, and similar
claims which are based on the ownership
of property interests. Remaining as viable
theories are breach of express contract,
breach of implied-in-fact contract, breach
of confidence, and breach of confidential
relationship, all of which are based on
the relationship of the parties rather than
ownership of property rights.
< Back to top
IV
ELEMENTS OF THE CAUSE OF ACTION--
PLAINTIFF'S BURDEN OF PROOF
This is
an opportune time to revisit the sad case
of the young writer whom we met at the outset.
His plight underscores the fact that a successful
claim requires more than a purloined idea.
In copyright, the courts focus primarily
on the "property" that is taken.
In "idea" cases, courts pay most
of their attention to the relationship of
the parties and only certain relationships
at that. Unfortunately for our young writer,
the required relationship did not exist
in his case. The elements of a claim for
breach of implied-in-fact contract are:
1. That plaintiff submitted her ideas to
the defendants and that the defendants received
them. 2. That before plaintiff submitted
her ideas to the defendants, she clearly
conditioned her disclosure upon defendants'
agreement to pay for those ideas of plaintiff's
which the defendants used, if any. 3. That
defendants knew, or should have known, the
condition upon which the disclosure was
being made before the disclosure was made.
4. That the defendants voluntarily accepted
the submission on plaintiff's terms and
thereby impliedly agreed to pay plaintiff
for any of her ideas which they might use.
5. That in writing the script for the motion
picture the defendants actually used plaintiff's
ideas, that is, that the defendants based
the motion picture substantially upon plaintiff's
ideas rather than on their own ideas or
ideas from other sources. 6. That the ideas
of plaintiff which were used, if any, had
value." In another case the required
elements were slightly less onerous to the
plaintiff:
"That he or she prepared the work;
that he or she disclosed the work to the
offeree for sale; under all circumstances
attending disclosure it can be concluded
that the offeree voluntarily accepted the
disclosure knowing the conditions on which
it was tendered (i.e. the offeree must have
the opportunity to reject the attempted
disclosure if the conditions were unacceptable);
and the reasonable value of the work."
Despite the precise wording of the cases,
the key is whether the defendant knew, or
should have known from all the circumstances,
that the plaintiff was offering an idea
for sale and expected to be compensated
if the idea were used. While the implied
contract must be formed prior to or contemporaneous
with the disclosure, events that occur and
words that are communicated subsequently
can be relevant in finding that an agreement
had been formed at the time of disclosure.
A. There Must Be An "Idea"
It may be obvious but still bears repeating
that the plaintiff must first demonstrate
he or she had an idea. California courts
are very generous to plaintiffs in that
novelty and originality are not required.
Thus in California, an idea may be protected
even though it is "widely known and
generally understood." In rejecting
any novelty requirement, one appellate court
held in a well-known case:
"We believe that if a producer obligates
himself to pay for the disclosure of an
idea, whether it is for protectible or unprotectible
material, in return for a disclosure thereof
he should be compelled to hold to his promise.
There is nothing unreasonable in the assumption
that a producer would obligate himself to
pay for the disclosure of an idea which
he would otherwise be legally free to use,
but which in fact, he would be unable to
use but for the disclosure�.The producer
and the writer should be free to make any
contract they desire to make with reference
to the buying of the ideas of the writer.
The fact that the producer may later determine,
with a little thinking, that he could have
had the same ideas and could thereby have
saved considerable money for himself, is
no defense against the claim of the writer."
Thus, while there is no requirement under
this theory in California that the idea
be novel or original, that probably does
not mean any idea will suffice. If the idea
is so amorphous or slight as to be next
to meaningless, the case may ultimately
fail because the idea had no value or was
so well known that the jury will easily
conclude that the defendant's work was independently
created. For example, were a writer to pitch
an idea for a new television show based
on a homicide detective in New York City,
who has a partner with whom he quarrels
and an irritable police captain to whom
he reports, the idea may be so obvious and
generic as to have little or no value and
the defendants would have little difficulty
proving that they too came up with that
idea independently.
B. The Idea Must Be Offered For Sale
In one celebrated case, the plaintiff had
an idea for a new game show but wanted to
attach a popular host in order to sell the
idea to the network. He approached a well-known
sportscaster to determine if he would be
interested in hosting the program, and in
so doing disclosed his idea for the program
to the sportscaster. The show was not made,
but some time later a similar show was produced
and the sportscaster was the host. Plaintiff
sued for breach of contract and breach of
confidence, but both theories failed. They
failed for the same reason the claim of
our young writer would fail; in neither
case was the idea being "offered for
sale" to the person whom it was disclosed.
Faris wasn't offering to sell his idea to
Enberg and our young writer wasn't offering
to sell his ideas (or scripts) to the agent.
In short, an idea submitted to a performer
to determine his interest in appearing in
a film, or to an agent as a writing sample
to see if the agent is willing to represent
the writer, is not a submission for sale.
The plaintiff must be offering the idea
for sale at the time of the submission in
order to protect that idea on an implied
contract theory.
C. The Person Receiving The Idea Must
Reasonably Understand The Plaintiff Expects
To Be Compensated If His Or Her Idea Is
Used
In an implied contract case the existence
of the contract is proven by the conduct
of the parties rather than by their words.
Thus, the circumstances underlying the submission
and the setting will be important factors
in determining what the parties knew or
should have known.
Was the idea disclosed in the context of
a business meeting or during a casual discussion
at a party? Did the parties know one another
and thus understand the way each does business?
Had they done, or attempted to do, business
in the past? Was the submission invited
by the recipient? Was an agent involved?
What words were spoken between them before,
during, and after the submission from which
their understandings at the time of the
disclosure could be implied?
To the extent the presentation is made in
the context of a formal business meeting,
the plaintiff will have an easier time demonstrating
that the defendant should have known he
or she expected to be compensated if the
ideas were used. Likewise, the plaintiff's
case will be stronger if the pitch or submission
was solicited. At a minimum, the plaintiff
must generally show that the defendant had
an opportunity to reject the disclosure
before it was made. If the defendant agreed
to take the meeting at which the idea was
pitched, or chose to read the material once
submitted, this should satisfy the requirement
that the plaintiff had not simply blurted
out an idea.
D. The Defendant Must Have Actually Used
The Idea
The plaintiff has the burden of proving
that the defendant actually used the idea.
In a number of appellate decisions it had
been recognized that actual use will rarely,
if ever, be susceptible of proof by direct
evidence. Instead, "use" of the
idea by the defendant is almost always proven
circumstantially. The plaintiff must prove
the defendant had access to the idea and
that defendant's material and plaintiff's
idea are similar in one or more material
respects. If access and sufficient similarity
are proven, an inference of use will arise
and the defendant will generally then resort
to the defense of "independent creation."
Access is established when the plaintiff
shows there was a "reasonable possibility"
(not merely a "bare possibility")
the defendant had an opportunity to view
and thus copy (use) the idea. Proof that
a third party with whom the plaintiff and
the defendant were simultaneously dealing
had access to the plaintiff's ideas is sufficient
to establish access by the defendant. However,
if the defendant is a corporation, access
by the corporation will exist only when
a corporate representative who is a supervisory
employee, an employee within the working
unit from which the defendant's work was
developed, or an employee in a position
to make creative suggestions, had access
to the plaintiff's ideas. Thus, when material
is submitted to a studio or network, it
will be deemed to have access to the material
only when the particular type of studio
or network representative outlines above
had access to it.
The degree of similarity required in an
idea submission case is something less than
the "substantial" similarity required
in a copyright action. There is authority
for the proposition that what is relevant
are the number and quality of the similarities,
not the number and quality of the dissimilarities.
In addition, the similarities must be on
"material" points. For example,
the fact that the lead characters in both
projects are males would be an immaterial
similarity. To the extent those males are
given distinctive characteristics, and the
characteristics are the same in both projects,
an otherwise immaterial similarity will
become material.
E. Independent Creation
The primary defense to any idea submission
claim is "independent creation;"
that is, a showing that the access and similarities
are coincidental and the defendant's project
was created independently and without use
of the plaintiff's ideas. Independent creation,
if established, is a complete defense in
an idea submission case.
There is no idea submission case directly
on point on whether the burden shifts to
the defendant once access and similarity
are proven. By analogy to copyright actions,
there is a split of authority; there are
cases which hold that the actual burden
of proof shifts and other cases which hold
that the burden shifts to the defendant
to produce evidence of independent creation.
Defendants, of course, contend that no burden
shifts, the jury can reject the inference,
and the defendant need not produce any evidence.
Regardless of the standard which is adopted,
in practice the defendant will always produce
evidence of independent creation once access
and similarity are established sufficient
to withstand a motion for nonsuit at the
completion of the plaintiff's case. Evidence
of similar ideas appearing in prior works
is relevant to prove independent creation
as it tends to show that the idea was common
and could well have been known to the defendant.
Any evidence of the manner in which the
defendant independently created his or her
work is also relevant.
There is authority for the proposition that
evidence of independent creation which is
so clear, positive, uncontradicted, and
of such a nature that it cannot rationally
be disbelieved, is conclusive and must result
in judgment for the defendant. However,
whether such evidence rises to the level
of being clear, positive and uncontradicted
is itself a question to be decided on a
case-by-case basis.
F. Damages
The measure of damages in an idea submission
case is the reasonable value of the ideas
used by the defendant which had been submitted
by the plaintiff. While this standard is
easy to cite, it leaves many unanswered
questions. Surprisingly, despite the number
of appellate decisions in this field over
the years, there is only one case that addresses
the measure of damages in any detail whatsoever
and even that decision falls short of resolving
all the issues. In Donahue v. United Artists
Corporation, the court rejected the defendant's
contention that reasonable value was equal
to market value. Instead, the court offered
a flexible approach to fit the facts of
each case and the practices of the industry.
The court upheld an award of damages based
on $2.00 for each of the 100,000 times the
series had aired, for total damages of $200,000.
In idea submission cases, as in Donahue,
defendants invariably argue that at most
the plaintiff is entitled to the market
value of the idea, i.e., a small, lump sum
payment of what a producer would pay for
a bare idea. In this context Donahue is
significant, rejecting this market value
notion in favor of a rule that sets damages
at the value "of the use to the defendant."
Furthermore, in another significant decision,
the court denied defendant's request for
a jury instruction to the effect that "plaintiff
cannot recover for the enhanced value which
their material acquired as a consequence
of independent efforts and expenditures
by the defendants."
One thing for sure is that reasonable value
is proven by expert opinion testimony and
an expert may rely on such factors as he
or she elects in light of the expert's training
and experience. The plaintiff is competent
to express an opinion on the value of his
or her ideas.
< Back to top
V
SO, WHAT MAKES A GOOD PLAINTIFF'S CASE?
An understanding
of the law is helpful but does not answer
the ultimate question of what makes a good
plaintiff's idea submission case. Assuming
the prima facie elements can be demonstrated,
there are a number of practical issues which
are relevant in deciding whether the case
is worth taking. Pursuing an idea submission
will be time consuming and costly, and there
is always the ominous concern that the plaintiff
will be blackballed if he or she sues a
network, a studio, or an important producer.
So when is the case worth filing?
First, there is the issue of who is the
plaintiff? Is he or she an industry professional
or an entertainment "wanna-be?"
A plaintiff who is well established in his
or her career will have greater credibility
with his or her adversary and with the court.
Proving damages is an easier matter when
the plaintiff has a track record and a demonstrated
earning capacity.
This does not mean the plaintiff has to
be well-known to be successful in litigation.
Even novices can create good ideas which
are susceptible to being stolen. However,
an unknown trying to break into the field
will have a more difficult time proving
his or her case and proving damages.
Second, there is the issue of what claims
are available to the plaintiff. The basic
cause of action is breach of implied-in-fact
contract. However, to the extent the facts
present an opportunity to allege claims
for breach of written contract, breach of
confidence, or breach of confidential relationship,
the case may be more attractive and have
greater value. This is because the measure
of damages in these other claims is probably
broader than simply the "reasonable
value" of ideas. A breach of written
contract, for example, will yield damages
based on Section 3300 of the Civil Code.
Breach of confidence will probably allow
damages to be awarded based on the measure
set out in Section 3333 of the Civil Code.
In either case, the opportunity to recover
all damage "proximately caused"
by the defendant's conduct is attractive
to a plaintiff.
Third, an attorney needs to consider the
type of projects in which his or her client's
ideas were used. For example, damages for
theft of an idea used in a single episode
of a television series would probably be
quite limited and may not be worth the cost
of litigation. On the other hand, theft
of an idea that is used as the basis for
a new series, and thus is used as a premise
for all of the episodes is very valuable.
This is especially so if the series itself
is successful and is on the air for several
seasons.
Other examples of projects are a television
movie of the week, television mini-series,
a theatrical feature film, a play, a book,
a magazine, and so forth. Some of these
are more valuable than others and this factor
should be taken into consideration in deciding
whether a case is worth pursuing.
Finally, the attorney and his or her client
will want to consider the particular forum
which is available to adjudicate the dispute.
For example, California law is more favorable
to plaintiffs than is New York law. In certain
jurisdictions, state courts are known to
be more favorable to plaintiffs than are
federal courts. Finally, some disputes may
be subject to the administrative jurisdiction
of organizations such as the Writer's Guild
of America. Careful attention must be paid
to the issue of whether administrative remedies
exist, whether they are mandatory, and,
if they are not mandatory, whether they
are preferable.
< Back to top
VI
UNANSWERED QUESTIONS
Despite
the passage of more than 50 years in which
California courts have repeatedly decided
idea submission cases, a number of questions
remain to some extent unanswered. While
there are cases pending in the appellate
courts at this time which may resolve these
issues, until this occurs there is the potential
for inconsistent rulings. Moreover, either
side in any litigation may submit evidence
or make arguments which will ultimately
be unavailing once the law is settled.
For example, despite some direction from
the appellate courts, the amount of similarity
which is required between two works in an
idea submission case is not entirely clear.
Some cases use the term "substantial
similarity" and appear to mean it;
others use "substantial similarity"
but seem to be referring to one or more
elements; and still others refer merely
to "similarity" as to any material
point. A litigant can find almost any language
he or she wants in one or more cases and
it is necessary to look very carefully to
reconcile the holdings in these various
decisions.
Another area that desperately requires clarification
is the issue of damages. It is not altogether
certain whether reasonable value is to be
determined from the perspective of the plaintiff
or the defendant. It is not entirely clear
what factors an expert may rely on in rendering
an opinion on value. Furthermore, a huge
issue remains with respect to the degree
to which an award may take into consideration
lost screen credit. The truth is, the damage
resulting from loss of credit on a successful
project is enormous and renders pale in
comparison the amount of money the writer
would have received for the one project
on which he or she sued. California courts
have danced around the issue, acknowledging
to some extent that the loss of screen credit
(or loss of publicity) is compensable but
never directly saying as much in clear terms.
There is no easy way to easily reconcile
those cases which say that even a slight
or commonplace idea can form the subject
of a contract and other cases which make
it clear that if the idea is generic and
flows inevitably from the nature of the
material, there is no claim. The better
rule is that the contract is formed but
the plaintiff is entitled to but a modest
recovery because the idea has little value.
Until the courts address this issue with
greater clarity, each case will be decided
on its own facts.
Finally, when the plaintiff makes a sufficient
showing of access and similarity, the defendant
normally proceeds in an attempt to show
independent creation. However, it is not
altogether clear whether the burden of proof
shifts, whether the burden of production
shifts, or whether nothing shifts (as defendants
invariably contend) and the defendant is
not required to do anything. There are a
number of federal court cases (cited above)
which clearly hold that some burden does
shift, but there is no California decision
directly on point.
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VII
CONCLUSION
It is anticipated
that idea submission cases will continue
to grow in popularity as more and more money
is spent to turn ideas into projects and
more and more revenue is generated for the
producers who receive credit. The emergence
of numerous cable networks creates a voracious
demand for new scripts and the corresponding
temptation on the part of some to short
cut the creative process by "borrowing
" from others.
It is worth noting that while this article
focuses on ideas for television programs
and motion pictures, ideas for almost any
type of creative endeavor can be protected
under these same theories. For example,
courts have dealt with ideas for books,
magazines, scientific inventions, consumer
products, marketing plans, plays, radio
programs, and so forth. It may be that the
legislature will take an interest in this
area and codify the law. Until that time,
cases will be decided based on a careful
analysis of their facts. Their outcome will
depend in large part on the ingenuity and
experience of the lawyers on both sides.
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