By Attorney Mark Litwak, Esq.
Originally published in Script magazine March/April 2002
When writers submit their work, they become vulnerable to theft. As an entertainment attorney I often hear from writers who believe that they have been ripped off. Usually the writer is a novice without representation who submits a script to an established production company. The company may return the script with a polite note passing on it, or the company may not bother to acknowledge receiving the material. Months or years go by, and one day the writer stumbles upon a movie which closely resembles his story. A recipient of the writer’s script made the movie. The writer is convinced that their work has been stolen.
Sometimes the writer is correct, and may be entitled to substantial damages for the infringement. Other times, there is no infringement. A general similarity between the writer’s script and another’s work may simply be a case of two creators thinking alike. Then there are the cases where the production company may have borrowed certain elements from the writer’s work, but such borrowing is permitted under copyright law. While such conduct may be unethical, it is not illegal.
Many writers do not have a solid understanding of the nature and extent of what copyright laws protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.
A copyright does not protect story ideas, concepts, or themes. Such elements are not protected whether they are in a writer’s head, written down on paper, or published. Ideas are as free as the air. Ten authors can write a story about a doomed romance between lovers from different backgrounds. This could be Romeo and Juliet, or West Side Story, or another variation on the theme. Likewise, multiple authors can write biographies about George Washington. Each writer is free to tell the story of George Washington’s life in his or her own words. Each can borrow facts and historical incidents mentioned by prior authors.
What copyright law protects is the “expression of the author.” This is the particular manner in which the writer tells the story, their approach to the material, their voice. In other words, what is protected is the embellishment on the idea—not the idea itself.
Consequently, others are free to borrow uncopyrightable elements from your work. They can extract ideas, concepts, historical facts, and other non-copyrightable elements. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell when an idea has been sufficiently embellished upon that the resulting work is considered an expression of an author and protected under copyright law. Clearly a one-page story synopsis is not much more than an idea. A 20-page treatment will deserve more protection, and a detailed script will garner even greater protection because it is a lot more than an idea. Several legal cases illustrate the difficulty courts have encountered in determining how much of an author’s work is protected under copyright law.
In Sheldon v. Metro-Goldwyn Pictures Corp., MGM attempted to secure the movie rights to Edward Sheldon’s copyrighted play Dishonored Lady. The play was based, in part, on a true historical incident in the public domain. When MGM was unsuccessful in negotiating to obtain the rights to the play, the studio produced a movie of its own, Letty Lynton, based upon the same historical incidents that were the basis for Sheldon’s play. Although much of this movie was original, certain details and sequences of events were identical to those expressed in Sheldon’s play. The lower court held for MGM on the grounds that the material borrowed only involved general themes or ideas.
The appellate court disagreed concluding that there was an infringement. The court found that MGM’s work was identical in details and sequence of events to Sheldon’s work in matters unrelated to the underlying true story. The court reasoned that this borrowing was more than merely appropriating an idea or a theme. Some of the details and sequences of events in Sheldon’s play that were not historical facts in the public domain were also present in MGM’s movie. The court concluded that it didn’t matter that the plagiarized material comprised only a small portion of the film because it is not acceptable to steal a little bit.
While MGM had every right to create a movie based upon the historical incident, it did not have a right to borrow copyrightable elements from Sheldon’s play. What MGM should have done was hire a writer who had not read Sheldon’s play and have him create a script based upon historical facts and his own imagination. Before beginning work, MGM should have instructed the screenwriter not to read Sheldon’s play so as to avoid any unintentional copying.
Compare the facts of the Sheldon case with Musto v. Meyer. Here the plaintiff wrote an article in a medical journal titled A Study in Cocaine: Sherlock Holmes and Sigmund Freud. It concerned the history of cocaine use in Europe in the 1800s. In a flight of fancy, the author speculated that Holmes was a heavy cocaine user, which led him to believe that Professor Moriarty was after him. The author also imagined that Holmes’ famous disappearance was due to his going to see Freud for treatment of his cocaine addiction.
Nicholas Meyer subsequently wrote a book titled The Seven-Per-Cent Solution. It had Watson tricking Holmes into seeing Freud for treatment of cocaine addiction, Freud curing Holmes, and both of them embarking on a Holmesian adventure. Universal Pictures made a movie based upon the book. Plaintiff sued, claiming the book and movie infringed on his copyrighted article. Nicholas Meyer had read plaintiff ’s article. Indeed, Meyer gave the plaintiff a credit in his book.
Sherlock Holmes is a fictional character, a creation of Sir Arthur Conan Doyle, whose copyright to the work expired long ago. Therefore, the Sherlock Holmes character, as well as all the other material in the Arthur Conan Doyle books “including Holmes’ use of cocaine,” are in the public domain and freely available for use. Since Holmes was a fictional character, the meeting between Holmes and Freud could never have taken place. It was the product of the plaintiff ’s imagination.
The court in this case found that neither the book nor the movie infringed plaintiff ’s copyrighted article. Meyer prevailed because the court reasoned that Meyer had only borrowed an idea, and it is permissible to borrow ideas. If the court had characterized what was taken as more than an idea, then Meyer would have infringed upon the plaintiff ’s copyright.
So much for copyright law. So how can writers protect their ideas? Even if ideas are not protected by copyright, they constitute a form of intellectual property; and the recipient of an idea can agree to pay the provider for it. This can be an enforceable contract.
In order to understand how a writer’s idea can be protected by contract; let us first review some of the principles of contract law. There are different kinds of contracts. Some are written. Others are oral. Contrary to popular belief, oral contracts may be valid and binding. However, most states have a law, known as the Statute of Frauds (e.g., California Civil Code sec. 1624), requiring that certain kinds of agreements be in writing in order to be valid. The purpose of this law is to deter fraud by encouraging parties to put their agreements in writing if they expect a court to enforce them. For example, one cannot transfer real estate orally. However, except for the types of agreements listed in the Statute of Frauds, oral agreements are generally valid. The problem with oral agreements is that their terms may be difficult to prove.
For example, let’s assume that you made an oral agreement to sell your car for $3,000. You shake hands with the buyer but never sign a written agreement. One month later there is a dispute, and you end up in court. The buyer tells the judge that you agreed to sell him your car for $3,000. You agree. The buyer then claims that you promised to fix a broken window before delivery. You disagree. There are no documents or witnesses or evidence that a judge can examine to determine what the parties agreed to. In this situation, whom should the judge believe? It’s likely that the judge will throw up his or her hands and refuse to enforce a contract if he or she cannot ascertain its terms
So while the law does not require that all contracts be in writing, it is usually advantageous to have a written agreement if only because a written document is evidence as to what the parties agreed to.
Another way to classify contracts is as express or implied contracts. When parties make an express contract, it is explicit that they are entering into an agreement. Typically, they sign a piece of paper or shake hands. In other words, the parties to an express contract state its terms in words. An implied contract is a contract implied from conduct. It is implied wholly or partly from the behavior of the parties. Let’s suppose that you enter a store and pick up a candy bar. Without saying a word to anyone, you remove the wrapper and begin eating it. Then you head for the door. The proprietor says, “Hey, wait a minute, you didn’t pay for the candy bar.” You reply, “I never said I would buy it.” Under these circumstances, a court might rule that there was an implied agreement based upon your conduct. It is understood that when a person consumes merchandise in a store, he has agreed to buy it. Sometimes implied contracts are not based upon behavior but are implied by law for reasons of equity and fairness, and to prevent the unjust enrichment of one party at the expense of another. These are called quasi-contracts. Unlike true contracts, they are not based on any intention of the parties to enter into an agreement. The obligation arises from the law.
An interesting case to read is Desny v. Wilder. In 1949, a writer (plaintiff ) telephoned director Billy Wilder’s office on the Paramount lot and spoke to Wilder’s secretary. The writer asked to speak to Wilder, but the secretary insisted that he explain his purpose. The writer told her about a story based upon the life of a boy, Floyd Collins, who had been trapped in a cave. The incident had been the subject of widespread news coverage for several weeks back in the 1920s.
The secretary liked the story, but when she learned that it was 65 pages long, she said that the material would have to be sent to the script department to be put in synopsis form. The writer said that he preferred to condense it himself, did so, and called her back two days later and read her a three-page outline. She took the story down shorthand and said she would discuss it with Wilder. The writer told the secretary that he expected to be paid for the story if Wilder used it.
The writer later discovered that Paramount had made a movie about the boy, including a fictionalized incident created by the writer. The writer brought suit. The court was faced with several issues: Could the writer sue for theft of a story based upon a true story in the public domain? Did it matter that the writer never directly spoke or met with Wilder or any Paramount executives? Could there have been an implied contract between the parties?
In analyzing the facts of the case, the appellate court found for the writer. The court stated that literary property could be created out of historical events in the public domain. Paramount had the right to go back to the historical record and prepare its own story. The writer had no hold over public domain material or the idea of doing a screenplay on this subject. But if Paramount used the writer’s research and work, there may have been an implied agreement between the parties to compensate the writer.
The writer in that case could not sue for copyright infringement because his story was largely a true historical incident in the public domain. Instead, the writer sued for breach of contract. The court decided to send the case back to the trial level so a jury could decide if Paramount had relied on the writer’s synopsis in making the film.
The fact that the writer never spoke to Wilder or any Paramount executive did not preclude him from a remedy. The secretary was considered an agent of Wilder and Paramount. A secretary has the authority to accept stories and manuscripts for her employer.
As Desny v. Wilder illustrates, contract law can provide the basis for a successful lawsuit for story theft. Of course, the best way for a writer to protect himself or herself would be to have the recipient of a story idea sign a written agreement. However, it may be awkward for a writer to begin a meeting with such a request. Some producers might be offended or worry about liability. They might want to consult their lawyer. Since writers often have a difficult time just getting in the door to see powerful producers, asking for a written agreement may not be feasible.
A less-threatening approach would be to enter into an oral agreement with the producer. The writer begins the meeting by simply saying: “Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation.” The producer most likely will nod their head yes or say “Of course,” in which case you have a deal. If the producer indicates that she or he does not agree to these terms, depart without presenting the story.
Since this contract is oral, there might be a problem proving its existence and terms. That is why it’s advisable to have a witness or some documentation. You could bring a co-writer, agent, or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: “It was really a pleasure meeting with you to discuss my story about. As we agreed, if you decide to exploit this material, I will receive reasonable compensation.” If the recipient does not disavow the terms set forth in your letter, the letter could be considered part of your agreement. Since the producer has not signed the letter, his or her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.
But what if the producer listening to your pitch doesn’t steal your story but repeats it to another producer who does use it? You can protect yourself by also saying I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission. If the producer nods his or her head okay or says yes, you have a deal and you can sue if for breach of promise.
Mark Litwak is an entertainment and multimedia attorney based in Beverly Hills. He is the author of five books including Reel Power, The Struggle for Influence and Success in the New Hollywood (William Morrow, 1986), Dealmaking in the Motion Picture and Television Industry (Silman-James Press, 1994) and Contracts for the Film & Television Industry, 2nd Ed. (Silman-James Press, 1998). He is the creator of the software Automated Contracts for the Film and Television Industry and the website Entertainment Law Resources. © 2001, Mark Litwak.
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