For all you wannabe screenwriters out there (we know how many attorneys hold on to that secret dream!), and those who represent them, the perennial issue is how to protect great ideas for screenplays from being poached. A recent 9th Circuit took on this issue and held that two screenwriters who claimed their idea for a screenplay had been copied without permission did not have a case for copyright infringement, but nevertheless could sue under state contract law based on an implied-in-fact contract.
In Benay v Warner Bros. Entm’t, Inc. (9th Cir 2010) 607 F3d 620, a couple of writers alleged that their agent pitched their screenplay to defendants with the understanding that if it was used to produce a film, the writers would be appropriately compensated. Defendants passed on the screenplay, claiming they had a similar project in development. It is that “similar” project that is the basis of the suit.
The Ninth Circuit found that the screenplay and the film were similar in some ways, but dissimilar in others, and ultimately had many more differences than similarities. In addition, the similarities were mostly among unprotected elements, i.e., historical facts, characteristics flowing naturally from their shared premise, and familiar stock scenes. Thus, the court found that they were not substantially similar for purposes of copyright infringement.
This is not the end of the story for the screenwriters though — the finding against them on copyright infringement does not preclude a finding of substantial similarity for purposes of an implied-in-fact contract under California law.
For a discussion of implied-in-fact contracts, check out California Law of Contracts §4.34 (Cal CEB 2007). Copyright infringement is covered in CEB’s Internet Law and Practice in California, chap 1 (Cal CEB 2004) and California Business Litigation, chap 7 (Cal CEB 2002).
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