Protecting Ideas – Its Like Trying to Corral the Wind

By Jon Lee Andersen

I often get inquiries from clients seeking advice on how they can protect an idea for some creative endeavor. It might be for a TV drama, comedy, game show, play, movie, book, or music. Of course, sometimes the inquiry is “how much of someone else’s program can I use and not get in trouble.” However, for our purposes this article will focus on the former issue; the protection of an original idea, or more specifically, when an idea, without being fleshed out into a full script, score or video, is being presented to someone for purposes of consideration for future action.

Truth is, it is not easy. Copyright, often the first thought, does not protect the underlying concept (the idea) or structural elements (plot, characters, locations) of a work. The reason lies in the frequently misunderstood fundamental purpose of copyright law, which is to “promote the Progress of Science” and thus leave in the public domain the tools which are used for such progress. Ideas are free for anyone to use in the pursuit of this progress.

So, if copyright is not going to help much, what are the premises upon which an idea submitted for approval or use can be protected? Most of the cases I read that address the problem apply either to California or New York law, which is logical since these states are where the movie production studios and television network headquarters are located and where most of the lawsuits originate. The research indicates that the most successful cases in these jurisdictions, from the standpoint of the creator of the idea, have been based upon the court’s finding that there was a contract of some sort under that State’s law between the parties involving the use of the idea. And since it is seldom written out in any detail, the contract is usually characterized as an” implied contract”. This normally means that the court was able to find sufficient evidence, either from correspondence, notes, or the actions of the parties, to conclude that they had reached an agreement with respect to the use of the idea.

In addition to the usual requirements of circumstantial evidence of an agreement, New York has the added requirement that there be a determination that the idea itself be truly original to the party to whom it is presented. The reasoning here is that in order to have a contract, the idea must become “property” in the sense of being something valuable which is being offered. In the court’s view unoriginal, known ideas have no value as property and the law does not protect against the use of that which is free and available to all.

California is more liberal than New York in its willingness to find an enforceable contract. Generally speaking, in a California entertainment industry case, if the evidence shows that the receiver of the idea had knowledge of the owner of the idea, and that this owner expected to be paid if the idea was used, the court will find an implied contract for payment if the idea is used.

So, a couple of tips:
1. Always disclose or submit an idea with a written statement that if it is used, you expect to be compensated for such use. It can be a letter, a memo, or other written document.
2. Add a confidentiality agreement to the submission. The more terms surrounding a course of communication, the better.
3. Keep all of the correspondence, emails and other communication with respect to the idea.

A little known writer said “hey”
I’ve a new idea for a play
But he told a producer
While trying to seduce her
And she took it herself to Broadway

© October 2010 Jon Lee Andersen