Contact us
Main Banner

HOW TO PROTECT YOUR IDEAS

COPYRIGHT DOES NOT PROTECT IDEAS

It is important to recognize that Copyright Law does not protect ideas. Copyright Law only protects the “expression of an idea that is fixed in a tangible form.” Only written words can be protected by copyright. Ideas or concepts are not protected. This is because the law promotes creativity. An idea or a concept behind a written work can inspire another person to create something. Only the actual written words are protected from infringement once the work is registered with the U.S. Copyright Office. Copyright law protects against actual copying of the written words, but the ideas behind your work are allowed to inspire additional creations.

The solution to fully protect your idea against someone else using it is to simply write it down. The more you write your idea and express it in a tangible form, the more your idea is protected as an expression. Federal Copyright Law only protects what you write, not the inspirational idea behind your work no matter how original or novel it may be. The Federal Courts regularly state in opinions that:

“Ideas are as free as the air.”

CONTRACT LAW

Fortunately, you may have a legal recourse based on state laws when you feel your idea has been stolen from you. For example, both New York and California recognize legal claims for Implied In Fact Contracts when it comes to idea submission and idea theft.

Contract law was developed in order to hold people to their promises. An implied contract is an agreement that arises without any party specifically, in writing or verbally, expressing the terms to be enforced. Rather, the parties indicate by their conduct that they have reached an agreement. The parties behave in a way that indicates they have entered into a contract.

This legal concept is important in the scenario of an idea pitch. There are certain basic principles that must be established in order for a contract claim to exist. So what are these basic principles? It takes a bilateral expectation that the party receiving the confidential information will compensate the other party for the reasonable value of the idea. A bilateral expectation, in a nutshell, is what creates an implied contract. This is based on the factual circumstances.

The key factors are as follows:

First, the courts look for whether or not the idea was solicited or unsolicited. If it was solicited, the likelihood an implied contract exists is very well; but if the idea was unsolicited, then it weakens the case for the existence of an implied contract.

Second, was there an opportunity for the person, who was the receiver of the idea, to reject? Once the person knew there was some information that was going to be shared, did he or she have an opportunity to say “no I do not want to hear this” or even able to walk away? This is another key factor that the courts will look at to determine whether an implied contract exists.

Third, were there general business circumstances surrounding the disclosure? Was there a lawyer or an agent present? Did it take place in a business environment or was it simply at a party? All of these factors, in a realistic sense, are what the courts will turn to when determining whether or not there was a reasonable bilateral expectation of payment.

Fourth, the idea needs to in fact be used. So, it is not possible to simply make a claim unless the idea was in fact used.

Fifth, is a factor that does not exist in California, but does in New York. This factor is about whether or not the idea has to be novel, or new, or not. In New York it does. So if someone tells you an idea, and you already knew it, and it was not new, then you would not have a breach of contract claim. But as in California, you would have a contract claim because novelty is not a requirement as of yet.

There is also another theory that does not exist in California, but does in New York, and that is the tort theory of misappropriation. In a tort misappropriation cause of action, you are not suing because of a breach of implied contract, but instead you are suing because someone actually committed conversion of a property right. In order to state a claim for misappropriation in New York the idea must be “novel” and “concrete”. There also needs be some sort of legal relationship between the parties that satisfies the duty element in the tort cause of action.

As a noteworthy point, the California legislature has proposed bills concerning this area of the law. A recent bill was proposed that would include novelty as a requirement for a breach of implied contract claim. As of yet, the requirement has not been introduced into California law.

IMPLIED IN FACT CONTRACT CAUSES OF ACTIONS ARE DIFFICULT

It is tough to win on breach of implied in fact contract claims for idea submission cases. The plaintiff has the burden of establishing by a preponderance of the evidence all the facts necessary to prove the elements of the cause of action. If the plaintiff cannot prove one of the elements, then the Court will find for the defendant.

To recover for implied in fact contract, the plaintiff must prove:

(1) That the plaintiff submitted his or her idea to the defendants and that the defendants received them,
(2) That before the plaintiff submitted his or her ideas to the defendants, disclosure was clearly conditioned upon the defendants’ agreement to pay for those ideas,
(3) That the defendants knew, or should have known, the condition upon which the disclosure was being made before the disclosure was in fact made, and
(4) That the defendants voluntarily accepted the submission on the plaintiff’s terms and thereby implicitly agreed to pay the plaintiff of any ideas that they might use.

CREATE A PAPER TRAIL

No matter if you are a writer or a producer, you should create a paper trail memorializing all meetings and conversations in which ideas are exchanged. For example, if you are a producer and you were already working on a project that had the ideas and concepts of what another author pitches to you, it is important to memorialize the fact that you had a similar project in the works already and that you are not using the author’s ideas. Similarly, if you are a writer and you pitch an idea to a producer, it is important to memorialize the fact that if the producer uses your idea there is an expectation that you will be fairly compensated.

As a script writer, you can take the following suggested steps to protect your ideas:

(1) Fully write out all your ideas – the more detailed, the better;
(2) Save all the drafts of your work;
(3) Register your work with the Writers Guild of America (however, it is important to be aware that registration with the WGA has no legal effect, but it does add to the paper trail evidencing the date and history of your creation);
(4) Register your work with the U.S. Copyright Office;
(5) Memorialize all pitch meetings about scripts and treatments (this even includes telephone conversations);
(6) Bring an attorney if you have an in- person meeting (it could also be an agent, manager, or a third party because it creates more of a business setting);
(7) If you are sending an email to memorialize a pitch meeting, copy your lawyer, or agent, so it creates circumstances that show this really is a business submission; and
(8) Make sure the cover of your treatment or script shows your WGA registration number, U.S. Copyright Office registration number, your name, your address, your agent, and your lawyer.

GENERAL RULE: REGISTER WITH THE U.S. COPYRIGHT OFFICE IF YOU ARE SHARING YOUR WORK WITH OTHERS

At the idea submission stage of the process, it has been the standard not to file for copyright registration with the U.S. Copyright Office. This is now wise. It is advisable to always register for copyright. WGA registration alone is not sufficient legal protection. Registration with the U.S. Copyright Office allows the Federal Court’s to have jurisdiction over a potential infringement action – WGA registration simply does not have any legal effect. Usually at the idea submission stage, the created work is merely in a treatment form. A treatment tells a story about a script in an abbreviated form. Writers tend not to register for copyright with the U.S. Copyright Office because the work is not final and will undergo many drafts. Rather, writers tend to only register with the WGA, which will give the treatment or script a number, seal it in an envelope, and store it in a vault for five years. This serves as evidence, but it does not have the legal effect as registering with the U.S. Copyright Office. As a very important general rule, if you are showing your work (whether it be a script, treatment, or any other creative work) to anyone – if you are sharing your work with others – you must protect your work by registering it with the U.S. Copyright Office.

Now that we’ve covered the basics of how to protect your ideas, you can submit your ideas with an awareness of what steps should be taken.