It’s a familiar story (and I don’t claim to have come up with it, so don’t tell me I stole it): Writer pitches a concept to Producer. Producer rejects (or ignores) the concept, and Writer and Producer each go their separate ways — until Producer later makes a movie or TV show that Writer believes is derived from his idea. Writer sues, claiming the circumstances under which he pitched the idea created an implied understanding that Writer is entitled to credit and compensation for the use of the idea. Producer, usually, claims she’s never even heard of Writer, which really hurts Writer’s feelings. Writer, sometimes, claims to be the victim of a broad-based media conspiracy to keep him and/or his demographic group(s) down, which makes Producer wonder why it seems like everyone always has it out for her.
Commonly referred to as “idea theft” claims, these are the lawsuits that seem to accompany the release of, well, any movie or television show that reaches a certain threshold of success. This year alone, we’ve seen lawsuits targeting the creators of Ugly Betty, Sons of Anarchy, Pros vs. Joes, and Death at a Funeral (the last of these plaintiffs evidently being totally undeterred by the fact that the movie she claims stole her ideas was, itself, a remake of a nearly identical 2007 British film of the same name, with which she apparently has no qualms). Even Hayden Christensen, best known for playing young Anakin Skywalker in the Star Wars prequels, has just claimed that the USA Network stole the television program Royal Pains from a pitch he made (no indication that young Vader has punitively applied the sinister force grip on any offending USA Network executives).
But before you become the umpteenth person to sue J.K. Rowling for stealing your ideas and turning them into the Harry Potter series, remember this one simple rule: any successful lawsuit starts with a good complaint. The language used to introduce the plaintiff’s legal theory is not just boilerplate — the particular words used can have major implications on the viability of the action. This is perhaps no more important than in cases alleging breach of implied contract.
In a seminal 2004 opinion, Grosso v. Miramax, the Ninth Circuit held that these breach of implied contract claims could be brought even if the writer had no cause of action for infringement of the copyrighted expression contained in his work. So long as the plaintiff properly alleged an “extra element” that distinguished the state law contract claim from a federal copyright claim, the case could proceed. The Ninth Circuit has been largely silent on the issue of idea theft in the six years since Grosso was decided. That silence ended in June, the Court issued two opinions within one week of each other that further explore the contours of these claims. While the cases are seemingly similar, the court — motivated either by careful attention to pleading detail or a fervent desire to keep law as incomprehensible to the general public as possible — reached different results in each.
In Benay v. Warner Bros. Entertainment, plaintiffs claimed that they came up with the idea for what became the Warner Bros. motion picture The Last Samurai. They claimed that they submitted a screenplay to Bedford Falls, the production company that made the film “with the implicit understanding that if Bedford Falls used it to produce a film, [plaintiffs] would be appropriately compensated.” The Ninth Circuit held that, while the plaintiffs’ and defendants’ works did not contain enough similarity of expression to support a copyright infringement claim, the plaintiffs could proceed on the basis that the ideas in the two works were substantially similar.
In Montz v. Pilgrim Films & Television, Inc., plaintiffs claimed that they came up with the idea for what became the reality show “Ghost Hunters” on the Sci Fi Channel. They sued parent company NBC Universal, to whom they’d presented materials for the show. Plaintiffs claimed that, “by producing and broadcasting” Ghost Hunters, NBC breached “an implied agreement not to disclose, divulge or exploit the Plaintiffs’ ideas and concepts without the consent of the Plaintiffs, and to share with the Plaintiffs . . . the profits and credit for their ideas and concepts.” The Ninth Circuit ruled that this implied contract claim was not legally viable.
What accounts for the difference in treatment between Benay and Montz? Well, according to the Ninth Circuit, the alleged promise in Montz did not contain an “extra element” to distinguish it from a copyright claim. An implied promise to pay for a plaintiff’s idea if it is used (as in Grosso and Benay) qualifies as an extra element, but a claim that defendants would not exploit plaintiffs’ ideas without compensation and consent was really no different than a copyright claim — and therefore was “preempted,” or barred, by federal law. Got that?
The difference in these results brings us back to importance of the language used in an implied contract complaint. By definition, these cases concern contracts that aren’t written or even oral. They are simply created as a result of the circumstances of a pitch, the custom and practice of the entertainment industry, and the shared expectations of the parties. This means that a plaintiff has wide latitude in deciding how to frame the alleged promise. In Benay, the promise was characterized as one to pay if the idea were used. In Montz, the promise was characterized as one not to use the idea unless there was consent and payment.
While this may seem like a subtle distinction, the difference in pleading meant the difference between the plaintiff staying in court and having his case tossed out. Because a copyright owner always has the right to prevent others from using his work without consent, promise or not, the claim in Montz was seen as essentially equivalent to a copyright claim. Without getting into the intricacies of the fascinating world of copyright preemption — email me and I’ll send you one of several articles I’ve written on the subject — suffice it to say that the plaintiffs in Montz wish their lawyer had pleaded their claim as in Benay.
Indeed, even though courts normally grant leave to amend deficient complaints very liberally, the Ninth Circuit refused to allow the Montz plaintiffs to re-plead their claim as one asserting that the defendants promised to pay if their idea were used. For plaintiffs to make an allegation that could withstand copyright preemption, they would have to contradict the terms of the implied contract in the original complaint, which is not allowed.
So I guess the next question might be: how carefully will the Montz plaintiffs’ new lawyer draft his complaint against the old one?