Q: I’ve got what I think is a great idea for a script. I haven’t written anything yet but have a meeting with a producer about a different project and would like to run my idea by him. While I have a working relationship with him, I’m still a little afraid of having him take the idea and use it himself. Is there anything I can do to protect myself? Big fan of the blog by the way…
A: Thank you for the kind words. Over the past few years, we’ve built up quite an international fan base that’s, frankly, reaching Twilight status. I think this is an opportune time to share with you some of the love letters we’ve received from our fans (all actual e-mails from actual fans).
“Why can’t you give a simple straight answer to a real question.” — Law Professor in New York (with no time for punctuation details)
“I started to read your article about remaking PD movies but did not finish because normally you annoy me with your adolescent humor (which, by the way, is not very lawyer-like).” — Entertainment Paralegal in Los Angeles
“I was prompted by my desire to kindly suggest you cut the adolescent humor from your articles because it is just not lawyer like. Whichever one of you is the comedian – I suggest you stick with your lawyer job.” — Same Entertainment Paralegal in Los Angeles feeling the need to describe why he/she sent the first e-mail
Yes, these are our faithful readers (names redacted for our protection). We strive to please our fans and it gives us comfort to know we’ve been successful. A little message to all you other wannabe-humorous legal blogs that focus on the independent film industry: TOP THAT!!
Now that we’ve gotten our requisite self-congratulations over with, I guess we can take time out of our busy schedule to answer your question.
Based on your fandom, I’m sure you’re familiar with our oft-repeated refrain “you can’t copyright an idea.” We’ve said it so many times, it’s like we’re taking writing tips from Jack Torrance.
Needless to say, we’re not going to tell you that you’re going to be able to protect yourself under copyright law. Not only are you trying to protect an idea, but you haven’t even put pen to paper. Without anything recorded in a tangible medium, you have nothing that could even be protected by copyright law, idea or not. In other words, if you’re relying on copyright law to protect yourself, you’ll be about as successful as a fitness craze dependent upon the inch-shedding power of boogie.
While you’re out of luck on the copyright claim, all is not lost. You may find protection under contract law. The question becomes whether you and the producer had an agreement regarding your idea and whether his use or disclosure of that idea breached your agreement. A court will look at the facts of the situation to see if they point to the existence of one of two types of agreements.
The first is an “express agreement.” Did you and the producer have an express understanding regarding his right to use or disclose your idea? For example, did the producer agree that if you told him your idea, he’d try to pitch it to a studio with you attached to write? Or better yet, did the producer agree that he wouldn’t use the idea without paying you for it? Even if you didn’t talk compensation (which may be a bit awkward at this early stage), you may have at least come to an agreement that he’d keep your idea confidential (i.e., he would not use it or disclose it to third parties). If any such agreement were reached, the producer’s use or disclosure of your idea would constitute a breach of contract, giving you a valid claim for damages under contract law.
Please note that while a signed pen-and-ink agreement would be nice (and make things a lot easier for you), it’s rare someone is willing to sign an agreement before hearing an idea. Luckily, a court doesn’t need to see some document you pulled off of legalzoom.com. An oral understanding would be enough. Just know that oral agreements, while valid, can be extremely difficult to prove in court. It turns into a “he said/he said” situation (it’s 2011, I’m comfortable assuming that two males can offer contradictory statements). Therefore, ideally, you’ll at least have some correspondence to which you can point which demonstrates the agreement. If you come to an agreement over the phone, you should at least confirm it with a follow up e-mail.
To make matters more difficult, let’s say this producer is a classic more-likely-to-throw-a-shoe-in-your-face-than-ask-you-how-your-children-are-doing Hollywood type. He’s so volatile that if you imply you expect something back from him if you give him your idea, he’ll use his iPad on you like Colwyn uses the Glaive in Krull. So you fail to have any discussions with him that could be construed as creating a binding agreement. You may still have a chance.
You say you have a working relationship with this producer. This tells me that you may have pitched scripts to him before, and perhaps even optioned or sold one to him in the past? Is there an established history of him paying you for your submitted materials? If so, you may have an argument that you had an “implied agreement” with him. While he may have never expressly said he’d pay you if he used this particular idea, because of his pattern and practice of paying you if he used your materials, it was implied that he would pay you in this instance. This can be enough to establish a valid contract in court and, thus, enough to put him in breach if he used the idea and didn’t pay.
I should note that if you were talking about pitching him an idea that you’d previously put on paper (and thus had something tangible that may be subject to copyright protection), the analysis could change due to the troublesome legal principal of copyright preemption. If you’d like someone to explain copyright preemption in a simple page-and-a-half blog, I have a certain law professor and paralegal to whom I’d be happy to direct you.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.