That Was My Idea! How Hollywood Is Avoiding Story Theft Claims

From The Hollywood Reporter:

A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The StingReservoir DogsOcean’s ElevenNow You See Me and Baby Driver that were released in between.

Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).

“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”

Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”

Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.

TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: PicardCastle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”

Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”

Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”

The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”

The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.

Link to the rest at The Hollywood Reporter and thanks to S. for the tip.

Before he was a lawyer and when he started working for a large advertising agency, PG recalls being briefed by an agency lawyer with a couple of other new hires about how to handle unsolicited ideas.

As PG remembers it, the drill if an employee of the agency received an unsolicited idea for a commercial or advertisement, she/he was instructed to stop reading it as soon as they discovered what it was, draw a line where they stopped reading, labeling the line with something like, “I stopped reading here,” put it into an envelope and send it to the agency’s attorney.

For the record, PG has never received such a letter, email, etc., and doubts he qualifies as a juicy target for anyone to sue these days.

If Mrs. PG or a friend of PG’s received such a letter, PG would be inclined to follow the general pattern described in the OP, send it back with a letter or email saying you don’t accept ideas from anyone, send the original back and keep a copy of your letter or email somewhere (but this is not legal advice).

1 thought on “That Was My Idea! How Hollywood Is Avoiding Story Theft Claims”

  1. Something that the OP does a very, very poor job of explaining: It’s a California-focused article based around some unique California law (never cited or named in the OP) that is unique to, and limited to, film and television. (It might extend to streaming video… but as of 2019, when I last checked, no precedential appellate decision had extended it that far. Similarly, it has not been extended to gaming, interactive or otherwise.)

    It’s called a Desny claim, and it’s the one time that the idea matters and the expression doesn’t. Untangling a Desny claim (which can be heard in state courts) from a copyright claim (which cannot, see 28 U.S.C. § 1338(a)) is a continuing problem. That said, the key elements are:

    • A unique and specific “idea” with enough detail to it that it’s plausible for an experienced screenwriter to have used that idea to create the actual script that’s at issue (because a Desny claim isn’t ripe until at least the time there is a rough cut)

    • A formal presentation from the “originator” to the “producer” or agent (legal concept of “agent,” which could — as it was in Desny — be the producer’s secretary taking a phone message)

    • A more-than-just-assumed intention of mutual profit from the idea

    • Inclusion of the idea in a television or film production as a nontrivial element, after all of the above

    Here’s a smack on the wrist to the OP for not making clear that this is Special (one of the few times that can be said about that publication!)… and, in all probability, largely irrelevant to the fine readership of this blog.

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