On November 6, I posted a blog titled "What To Do About a Thieving Critique Partner."
On Monday morning, I read an AP story by Sandy Cohen dated November 9th titled "'Stolen' Ideas Big Business in Hollywood."
The story described the anger and frustration of screenwriters who believe that, after their stories were rejected by Hollywood filmmakers, some studios turned around and used those same stories to generate new screenplays that were later released as films. In a number of cases cited, the writers sued the filmmakers and studios.
Anyone who has read this blog for any length of time knows that U.S. Copyright law does NOT include provision for cases like this. Cohen reports, "Federal law says only the expression of ideas--actual screenplays or treatments--are copyrightable. Therefore, a writer would have to prove that a finished film or television show was almost identical to his original screenplay. A studio can get around that by simply tweaking a few details."
Nevertheless, a number of writers have taken studios or filmmakers to court, claiming copyright infringement.
Since there is no federal protection for ideas, these cases would seem to be without merit. However, the Ninth Circuit Court out in California put a new spin on the subject in a decision released 9/8/04.
The Ninth Circuit Court of Appeals is the largest of the thirteen U.S. Federal courts. Headquartered in San Francisco, the Court hears cases as far flung as Alaska, Hawaii, Montana and Nevada. Because of its location, it addresses many of the lawsuits brought against the film industry. It's also the most Democratic (in terms of party affiliation) of the country's circuit courts and has a reputation for being liberal. CNN once claimed that the Ninth Circuit is the "most overturned appeals court in the country," referring to the high reversal rate of its decisions by the Supreme Court.
The case that came to the Ninth Circuit in 2004 was Grosso v. Miramax Film Corporation.
Writer Jeff Grosso paid his way through film school by playing high stakes poker. He wrote a 1995 screenplay based on his experiences, which he titled "Shell Game." According to the New York Times (NYT), "Grosso sent an unsolicited copy of the script to a production company that had offices in the same TriBeCa building as Miramax and had a first-look deal with the company." Three years later, Miramax released the hit movie "Rounders" that Grosso believed was "stolen" from his screenplay. He sued in 1999 and, after losing in a lower court, appealed.
According to Amanda Bronstad in a July 31, 2006 article in the National Law Journal, "In that case, the 9th Circuit found that [Grosso] . . . failed to prove that Miramax infringed on his copyrighted script [but he] could sue under a state contract claim because federal copyright laws do not pre-empt it."
In other words, although Grosso could not sue for breach of copyright for his idea, he COULD sue for breach of an implied contract under California state law. According to entertainment attorney Mark Litwak's blog here, "Under California state law a contract may be implied when an idea is disclosed from one party to another 'under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work.'"
The decision essentially "declares that movie and television executives enter an implied conract every time they read a script or hear a pitch." (NYT)
Energized, Grosso went back to court again; this time claiming an implied contract.
The March, 2006 edition of the Los Angeles Lawyer said:
Because ideas can be expressed in numerous different ways and with varying degrees of abstraction, a grant of protection for an idea would bring the development of new creative expression to a halt. At the same time, ideas do have a recognized value in the entertainment industry. Producers or development executives will often be willing to pay for a good idea that can be developed into copyrightable expression.
Thus, while ideas are not protected by copyright law, the disclosure of
ideas may, under appropriate circumstances, be protected by copyright . . .
There are two ways that a contract may arise during an idea submission. First, either before or after disclosure, the writer may obtain an express promise from the recipient, either written or oral, that he will be paid if his ideas are used. Second, in the absence of an express contract, an implied contract may arise when the conduct of the parties and the circumstances surrounding the pitch or submission create a implication that if the recipient uses the discloser's ideas, the discloser will be paid.
Los Angeles attorney Aaron Moss wrote:
In light of the court's ruling, recipients of intellectual property will likely become more selective about those individuals from whom they accept pitches or submissions. Many producers or studios already require that disclosers sign agreements acknowledging that the recipients may have acquired material with similar ideas from other sources, and that it has no obligation to the discloser if it uses such material.
Idea disclosers, on the other hand, should carefully review any language that they are asked to sign, to ensure that they are not waiving the ability to realize the value of their creative works. In some cases, the subject of a pitch is not a screenplay or a treatment, but rather a high concept idea that is so novel that it is valuable in and of itself. The discloser of such a concept will particularly want to avoid signing a restrictive agreement that waives the protections afforded by the Grosso case.
Ironically, Grosso recently lost another round in court. Remember: He submitted that script to Gotham Entertainment, not Miramax. However, he chose to sue Miramix and not Gotham. The court found that he couldn't have an implied contract with Miramax if he never spoke with them.
Grosso's attorney, John A. Marder, plans to appeal that decision as well.
While the number of copyright infringement cases have been on the increase since the Grosso v. Miramax case, Mike Madison over at madisonian.net had a caveat:
It's hard for me to see how this is a win for screenwriters. Any competent production company stopped opening unsolicited packages a long, long time ago out of the fear of this kind of suit. Now executives will run, not walk, from anyone who even looks like a writer. Exactly how does this
make writers better off?
Stay tuned for more on these cases as they work their way through the legal system.