Idea Theft

Q:  I was wondering if you could help me with a problem I am having with the rights to a short story.  I have been in touch with the relevant owners of the copyright and they have been told by the author’s estate they are not allowed to do anything with the rights to the story.  However, what I am wanting to do with the story is not a direct adaptation — but more of an “inspired by.”  What I am wanting to do is a 60 minute TV one off.  The only thing I am desperate to hang on to is the short story’s “twist” and elements of the central dilemma. Where would I stand with moving ahead with different character names, different structure, but retaining the twist and profession of the central character from the short only – crediting only “inspired by”?

A:  Copyright law doesn’t protect ideas – it protects the expression of ideas.  This is a simple concept in theory, but applying it to a particular situation could be challenging.  For several excellent, definitive, and thought provoking discussions of this topic, please see our blog


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Last Friday, a federal district court in Michigan dismissed the complaint of Richard Pollick, the alleged creator of “diaper jeans,” i.e., disposable baby diapers designed to look like jeans (truly, an invention on par with the piano key neck tie). Pollick registered a copyright for his “Diaper Jeans artwork” in February 1981 and sent the design to Kimberly-Clark Corp. later that year. Kimberly-Clark Corp. eventually started selling Huggies “Jeans Diapers,” and Pollick filed a lawsuit.

Amazingly, this is the second bathroom-related infringement lawsuit to cross our path at Law Law Land in the last few months, proof that you are never truly safe, even on the comfort of your own commode. Unfortunately for Pollick, however, the court took one whiff of his claim and tossed it, ruling that “a simple visual comparison shows that not only are the diapers not substantially similar, they are substantially different….”

Let’s take a look at the evidence.
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Q: I read in the trades that a studio bought the rights to a nonfiction book based on a historical figure during the Gold Rush – Deadline. If historical events/figures are open game for the public to write about, when is it necessary to secure nonfiction book rights? If not legally necessary, is there any benefit in doing so?

A: Nikki Finke has taken over Hollywood (news) and has become the “trades.” Just like this blog has taken over ultra lucrative entertainment law blogging, I’m pleased to report, bankrupting, forcing into foreclosures, and running out of town most of our feeble competition. No wonder Nikki is a devout fan of this blog. (Or so I’m told by our go-to anonymous, ax-to-grind source; or maybe the source was talking about Nicky Hilton? It’s hard to know; the source was wasted.)
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Monday brought two interesting developments in the never-ending saga of people trying to pry shares of Facebook from Mark Zuckerberg. First, the lawsuit that spawned the uber-successful film The Social Network — and a damn fine blog post about the same— seemingly came to an end. (I assume Zuck clicked “Like” next to the story.) And second, the lawsuit that will inevitably spawn The Social Network IIsuddenly got a lot more interesting. (And maybe now Facebook will take those long-standing calls for a “Dislike” button more seriously.)

“At Some Point, Litigation Must Come to an End. That Point Has Now Been Reached.”

First, something the wunderkinds at Facebook can party about. The Ninth Circuit Court of Appeals rejected the attempts of Tyler and Cameron Winklevoss (not-so-affectionately referred to as the “Winklevii” in the movie) to set aside a settlement agreement which purported to resolve their claims against Facebook. Apparently, the Winklevii will have to live with $165 million (based on current estimates). And although Judge Alex Kozinski’s opinion rejecting their appeal isn’t nearly as sexy and exciting as Aaron Sorkin’s depictions of the heated depositions during the case — all in favor of just having Sorkin write real life for the rest of us, say aye — there are some legal concepts worthy of note, as well as a few choice samples of judicial snark. [Ed. Note: Aye.]
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Q: A few months ago, I wrote coverage on a non-fiction novel for a production company. Now, I’m interested in writing a screenplay on the same subject matter. If I sell the script to another studio, can the production company sue me? Granted, it deals with a well-known aspect of Polish jazz [the novel’s subject matter has been changed], but truthfully, I would never have been interested in the project had I not been paid to write the coverage. Help me!

A: Help is on the way, dear fan of Polish jazz, but truthfully, the help you need is not legal (isn’t not legal same as illegal?). You’re not alone, nobody would be interested in this project unless they were paid, and not even then, and then not even. Okay, I suppose Polish jazz is more pleasing to the ear than Brazilian jazz, but only marginally. Polish jazz once heard once can’t be unheard. You can’t unbutter that toast. But this is just my personal, uninformed opinion, as are most of my opinions. In fact, and I’m disclosing attorney-client privileged information here, two studios are fast tracking big budget Polish jazz projects as we speak, although they focus on the lesser known aspects of it. So you’d better hurry up with yours.
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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.
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Q: I spent three years developing a pilot script for a television series I created. I sent a copy to a writer/director who I knew had ties to a cable network, and with whom I had worked on another television series. Three months later, I happened to read on an online industry blog about a pilot that had been sold, the plot of which is identical to the one I sent, to the cable network the writer/director had contacts with. Then a few weeks later, I met an executive of the cable network who is familiar with the project and the writer/director. She confirmed that the pilot that was picked up by the network was with the same writer/director. It just so happened that I’d also sent a copy of my pilot script to this executive a few months prior to sending it to the writer/director. Without seeing the entire script of the pilot that was picked up, should I be suspicious about this convergence of events? What are my options here?

Signed: Trying not to be too paranoid in Hollywood.

A: Dear Too Paranoid, may I call you Too Paranoid? Thanks. Trying not to be too paranoid in Hollywood is like trying not to be too wet in a pool — futile or delusional or both. Maintaining a high, healthy level of suspicion and distrust of your friends, children, mentors, colleagues, and homo sapiens in general is a wise, time tested policy in all but few (can’t think of any) circumstances, let alone in Hollywood. Should you be suspicious of this convergence of events? Should a casino be suspicious of a player hitting a slot machine jackpot twice in a row?
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I often receive calls from potential clients that start something like this: “I wrote a script about Story X. I read yesterday in The Hollywood Reporter that Studio Y announced that it is coming out with a movie that is based on Story X. Should I sue them for infringement?” Even if the stories really are very similar, I often answer “no.” The potential clients are incredulous. “What do you mean? It is the exact same story!” That is when I explain the difference between inspiration and infringement.
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Q: Here’s a quote from an unsolicited submission agreement I was sent. “I hereby grant to you the non-exclusive right to use any or all of the Material for any and all purposes, in perpetuity.” Am I missing something or do I understand this correctly in saying that I am basically giving up all my rights to my writing if I submit it?

A: An unsolicited submission agreement like you were sent is a misnomer. It should be called an unsolicited gift agreement. It’s a gift agreement, because for the privilege of being read, you actually grant to the reader the rights to your material. Imagine this: you’re trying to sell your house, and a potential buyer who hasn’t even seen the house yet makes you an offer – the buyer will look at the house, and in exchange the buyer will own it just for looking. No word in the English language captures the colossal absurdity of that — you’d have to invent one.
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A few weeks ago, lulled into a stupor by the lazy days of summer, my family and I headed over to LACMA to kill some time before our weekly rendezvous at the neighborhood dog park. The featured installation was a retrospective by renowned conceptual artist John Baldessari, entitled “Pure Beauty.”

My favorite was “Brain/Cloud (Two Views): With Palm Tree and Seascapes.” We walked into a room on which a giant white brain was mounted on a blue wall. On the opposite wall a grainy, black and white projection of the brain was displayed. As we stood there ponderingwhat the heck this was all supposed to mean and trying to look sufficiently artsy, we didn’t realize that the brain was actually recording us on a twenty second time-delay video. Once our images popped up on the opposite wall, my seven-year-old daughter and my seven-year-old husband (in spirit if not in age) immediately began recording themselves karate punching and kicking the air, then literally ran around to the other wall and repeated the same nonsense so that, when the video played, they appeared to be fighting themselves under the watchful — um, eye? — of the brain. The room may have been empty before we arrived, but my family’s antics quickly drew an audience; even the typically stoic museum guards came over for a laugh. My family had become part of the art itself, if not the artist.

I can’t truthfully say that I absorbed the deep artistic meaning likely intended by Baldessari, but Brain/Cloud was pretty cool. And it did get me wondering about copyright (yes, I’m a geek, sue me). I would argue with as straight a face as Baldessari himself that our Battle with the Brain was, itself, a new and exciting piece of art. Just ask the guards. So whose art is it? Baldessari’s for having the idea and setting it up, or ours for portraying man’s eternal struggle against himself?
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