In January 1992, America saw Cosmo Kramer experience a moment of inspiration: a cologne that captures the smell of a day at the beach. But when he brought that idea to Calvin Klein’s marketing department, it received a decidedly frosty reception, with one representative calling it “the dumbest idea I have ever heard.” Imagine Kramer’s dismay then, when in December 1992, Kramer discovered Calvin Klein marketing a fragrance called Ocean by Calvin Klein. “I could have been a fragrance millionaire, Jerry!” he lamented.

Kramer’s fictional dilemma, famously captured on TV’s Seinfeld, is scarcely unique. In the entertainment industry in particular, it seems the true mark of a movie or television show’s success is the litigation that follows, where someone claims that the idea was his all along. In the world of movies, idea submission litigation has been associated with such successful films as the Terminator series, the Matrix trilogy, Pirates of the CaribbeanBroken Flowers, andRounders. More recent television hits Prison Break and Heroes have also attracted such claims, while reality television has been making a play for the title of “most lawsuit-prone genre yet.”

Despite how common these situations are, the law of idea protection is a sometimes vague, often unsettled, and always frustrating arena for litigants, whether they are legitimately aggrieved writers who have been taken advantage of by an unscrupulous studio or producers whose rightful success is met with spurious claims from plaintiffs who believe that every successful story about a robot was based on the two-page pitch they sent unsolicited to every studio in town. So, whatever side you’re on, here are the basics:

Because it is well-settled that copyright protects only the expressions of ideas, rather than the underlying ideas themselves, unless there is a tangible, written expression involved — a real screenplay rather than a verbal pitch over lunch at The Ivy — copyright claims are out. While for several years, plaintiffs brought so-called “reverse passing off” claims under the federal trademark law based on producers’ failure to give them credit for their ideas, as of 2003, the Supreme Court officially nixed those claims. Which means that federal law is basically a non-starter for idea theft claims, relegating plaintiffs to a mélange of semi-redundant state law claims — always a recipe for expensive and time-consuming litigation. Let’s focus on California and New York.

The most basic — and most viable — claim for idea theft is one for breach of contract. Courts look to the interactions of the parties and the circumstances in determining whether there was an express or implied agreement between the parties for the plaintiff to reveal his or her idea in exchange for the defendant’s agreement to pay for that idea if it was eventually used. In practice, these cases work pretty much how you might expect for a breach of contract case. Formal pitch meeting in which someone offers to come on as a producer and bring their idea along (“Let’s do business together, baby.”)? Maybe a contract. Plaintiff posts their screenplay idea on a blog and accuses studio of scouring the Internet and running off with an idea that bears some vague resemblance to the description online (“Hey, my story is also about a bank robbery!”)? Maybe not so much.

And in New York, courts have added another requirement, what they call “novelty to the buyer.” In other words, if your idea is so obvious, derivative, or unoriginal that a studio exec’s 10-year-old kid could have come up with it (“It’s a sitcom about a group of attractive young twenty-somethings who hang out at coffee shops, date, and talk a lot!”), you’re out of luck.

In New York — but not in California — plaintiffs can also bring claims for “misappropriation,” which basically means what it says: that a defendant misappropriated a plaintiff’s idea. These claims come with bigger damages, but in the immortal words of Spider-Man’s Uncle Ben, with great power comes great responsibility: in other words, bigger damages awards means bigger hurdles for a claim. The allegedly misappropriated idea is held to an even higher standard of novelty: it must reflect “genuine novelty and invention” and cannot be a “variation on a basic theme” or an “improvement of standard technique or quality, the judicious use of existing means, or the mixture of known ingredients in somewhat different proportions.” Moreover, “a plaintiff may not claim that an idea is novel if the idea was already in use in the industry at the time of plaintiff’s submission or if the defendant himself had already used that idea.” Not only must a plaintiff prove their idea to be innovative and original, however, they must also establish some kind of special legal relationship with the defendant — a fiduciary relationship, a joint venture, a contractual relationship, a confidentiality agreement, or the like.

In addition, thanks to the combination of creative lawyering and fragmented common law legal theories, idea theft claims have come to the courtroom under many other serious, legal-sounding titles like “conversion,” “unjust enrichment,” and “unfair competition.” The short answer to these: forget about them. Federal copyright law preempts any state claim that looks a little too much like a copyright claim, and these claims are usually shot down on Day 1.

So what’s a struggling young writer/idea guy or a high-profile producer to do to protect him or herself? Writers and idea guys: always be clear — preferably in writing, and on as specific terms as possible — that you expect compensation for your ideas, and if you can, try to focus on more formal channels of communication (through agents or lawyers). And maybe don’t assume that no one else in Hollywood could have come up with an idea for “A movie set in the Civil War! About soldiers! It’ll be great!” Producers: adopt express, written idea/script submission policies (“We don’t accept them.”), publish those policies on your website, and destroy or return unsolicited submissions without looking at them as soon as you realize what they are. And maybe don’t actually steal people’s ideas.

In the end, though, while the law offers many different avenues for plaintiffs to pursue their idea theft claims, more often than not these cases are decided not just by the law, but by the nature of the facts and the ingenuity and experience of the lawyers on both sides. In an industry characterized by such unequal bargaining power between parties, this does not bode well for would-be plaintiffs. For example, what settlement did Kramer get from Calvin Klein for stealing his fragrance idea? A few flattering comments about his physique and an appearance in a risqué underwear advertisement.

 

This post is adapted from a longer piece, co-authored with Tina Rad, which originally ran in the Journal of the Copyright Society of the U.S.A. See Kenneth Basin & Tina Rad, “I Could Have Been a Fragrance Millionaire”: Toward a Federal Idea Protection Act, 56 J. COPYRIGHT SOC’Y U.S.A. 731 (2009).