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Protecting Ideas under an Implied Contract Theory

Co-author Gerald M. Levine

Authors ask whether they can protect their ideas by which they mean the conception rather than the expression. This suggests a misappropriate theory rather than infringement of copyright. The answer is that copyright law protects ideas only to the extent they are organized and fleshed out in expressive language. Some protection for ideas is available under implied contract. When the question is put in the context of television and movie properties there is another consideration. There are other registration services other than the copyright office for script ideas. Something tangible has to be pitched to investors and studios that may be less than a fully developed work, although more than bullet points of ideas. Scripts and bibles can be protected by contract, but not fully or satisfactorily. Recipients of “ideas” even with some development are unlikely to bind themselves or acknowledge the “originality” of a script originating from anyone other than themselves.  In any event, authors are likely to be asked to sign a Submission Agreement that limits their legal recourse in the event of any perceived infringement.

Not as an alternative, but supplementary to copyright are registration services. The WGA East website makes the following statement:

Script Registration is one of the most popular services offered by the Writers Guild East. We register the creative material of thousands of writers each year. Before you start sending your work to agents, producers and actors, make sure you protect your material with the Writers Guild Online Script Registration service. Script Registration fees ….

WGA West’s statement is a slight variation, but conceptually identical:

Since 1927, the Writers Guild of America, West Registry has been the industry standard in the creation of legal evidence for the protection of writers and their work. When you register your script prior to submitting it to agents, managers, or producers, you document your authorship on a given date should there be unauthorized usage.

Registries offer important protective tools against “unauthorized usage” by documenting both authorship and priority. It puts all parties on notice of creation and ownership. WGA East and West registers are similar to copyright registration, but private registries do not have the force of law. They are not substitutes for copyright protection.

There is not much law on this subject, but a decision was filed on January 31, 2012, Sims v. Viacom, Inc., 2:11-ev-o675 (W.D. Pa) that sheds some light on the problem. In brief, Sims “developed and created an idea for a reality television series called ‘Ghetto Fabulous,’ which would feature a competition between uncouth urban women.” He officially registered and recorded the “concept” with WGA, then worked with a collaborator to flesh it out. The original filing with WBA was then amended to add the collaborator and attach the formal treatment.

The collaborator submitted the treatment to “various television companies, cable companies, producers, directors and actors … including Viacom.” Viacom required the collaborator for herself and plaintiff to sign a “Submission Release.” Typically, a Submission Release asks the author to acknowledge that 1) the recipient (investor, studio, etc) is exposed to many stories, ideas, concepts and other literary materials, many of which are similar or identical to the submission; and 2) she will not be entitled to any compensation or other consideration because of the use of such similar or identical material, stories, ideas, and/or concepts that may have come to recipient. The Submission Release may also contain a provision noting that it is the author’s responsibility for registering her material with the Copyright Office and the WGA registry.

Sims commenced his lawsuit after comparing a Viacom produced reality television show with his submission and concluded it was the same. The reason the court dismissed the action is food for thought. “The Copyright Claim” (the court declared) “is barred because Sims failed to register his work.” An action for infringement of a copyright may not be brought until the copyright is registered. Sims’ “argument that his registration of the treatment with the Writers Guild of America is sufficient to meet the prerequisites of § 411(a) [of the Copyright Act] is without merit and requires little discussion.” The court cited an unreported decision from the Southern District of New York that deserves underlining and coloring with a yellow marker: “The Copyright Act requires registration be with the Register of Copyrights, not the Writers[] Guild of America.”

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