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California Court Tosses Idea Theft Suit Over LOST Television Show Out to Sea

Posted in Practice & Procedure, Trade Secrets, Unfair Competition

By Michael Baniak and Puya Partow-Navid

Arthur Quiller-Couch formulated seven basic plots for a conflict.  Following his formula, every movie and television show can be narrowed down to one of seven basic plots.  Although the number of plots may be limited, there are inifinite ways to tell a story.  In a town like Hollywood, where everyone seems to have a script, there is always a chance that your story may be new; or similar to a story that has already been told, or even worse, a story that has already been sold.  Protection of “ideas” in Hollywood can literally be a big deal.

Intellectual property (property of the mind) is protected under copyright, trademark, patent, or trade secret law.  Still, it is well known that none of the aforementioned laws protect ideas per se, such as ideas for television series or movies. 

However, under California law, ideas still get some protection under the principles of an implied-in-fact contract.  The disclosure and submission of an idea may be consideration for a promise to compensate for the disclosure/submission of the idea.  Specifically, idea theft claims under California’s “implied-in-fact contract law” require proof of: (1) submission of the idea on an obligation to pay for use of the idea; (2) voluntary acceptance of the submission based on knowledge of the obligation to pay for the use of the idea; (3) use of the idea; and (4) damages.  See Desny v. Wilder, 46 Cal. 2d 715 (1956) and Mann v. Columbia Pictures, Inc., 128 Cal. 3d.  628 (1982). 

In idea submission cases, the framework for proving use is nonetheless parallel to showing copying in a copyright claim.  The elements of a copyright infringement are ownership of the copyright and actual copying by the defendant.  Meta-Film Associates, Inv. v. MCA, Inc. 86 F. Supp. 1346, 1354 (1984).

Copyright protects the creative expression of an idea, the idea in and of itself is not copyrightable.  Thus, if the author confides his idea to a friend and the friend uses the idea to make a movie, there is no copyright infringement.  The exclusion of ideas from copyright protection may be found in 17 U.S.C. § 102(b). 

In Spinner v. American Broadcasting Companies, Inc. (ABC), Spinner alleged that ABC developed and produced the television show LOST from a script Spinner submitted to ABC in 1977.  The Court of Appeals affirmed the lower court’s finding of summary judgment, finding that Spinner failed to produce evidence that ABC used his materials.  Furthermore, the Court of Appeals found that ABC established the independent creation of LOST, an absolute defense to idea theft.

Spinner was retained by ABC in 1977 to draft a pilot and entered into an agreement that was to pay Spinner $30,000 for his services.  Spinner submitted a script for a two-hour pilot titled L.O.S.T..  The show was based on people stranded in the Himalayas as a result of a plane crash.  While in the Himalayas, the survivors entered a mountainside tunnel and were transported to a prehistoric world.  The show centered on the survivors attempt to survive in the prehistoric world where they come up against creatures and primitive human beings.

ABC passed on the 1977 script.  Time passes and in 1991 Spinner submitted a new treatment of the 1977 script to ABC.  Spinner also submitted a third treatment in 1994.  The updated treatments moved the story from the Himalayas/prehistoric world to outer space.  Still, ABC passed on the updated treatments.  More time passes.

In 2003, Lloyd Braun first thought of the concept of what would be the television show LOST.  Braun stated that the concept was based on a marriage of the concepts from Survivor and Cast Away.  At the time, Braun was the chairman of the ABC Entertainment Television Group.  Braun pitched his idea of LOST to other ABC executives at an ABC retreat.  After reviewing an initial draft by a contract writer, Braun hired J.J. Abrams and Damon Lindelof to draft a script.  In 2004, a brainstorming session was held, and Lindelof drafted detailed notes based on the brainstorming session between Lindelof, Abrams, and ABC executives.

A script for the pilot was submitted on February 24, 2004.  The script and the general format of the show were finalized by May 2004 and ABC premiered the pilot of LOST in September 2004.  For LOST, the time between drafting the script and airing the pilot was very fast, even by Hollywood standards.

Spinner alleged that the concept of the LOST series that premiered in September 2004 was based on the idea he originally submitted to ABC in 1977, and that ABC could not possibly have been able to go from concept-to-premiere so fast without his 1977 script.

The Spinner Court first focused on the use element.  Spinner did not have direct evidence that ABC used his script.  Still, Spinner tried to infer use by alleging that ABC had access to his idea.  Additionally, Spinner inferred use by alleging that the idea for LOST was similar to Spinner’s script. 

To show proof of access, and lack thereof, both Spinner and ABC relied on copyright infringement cases.  Typically, copying is proven via circumstantial evidence of access and substantial similarity.  Meta-Film Associates, Inv. V. MCA, Inc. 86 F. Supp. 1346, 1354-55 (1984).  Access means that the defendants had an opportunity to view or to copy plaintiff’s work.  Id. at 1355.

Spinner predicated access on the theory that the development executives of LOST had a reasonable opportunity to view Spinner’s 1977 script, because ABC had a policy of permanently retaining unreturned scripts; his script had not been returned.  Spinner thus alleged that the script must have been accessible in an ABC “script library.”

However, a search for Spinner’s 1977 script yielded no results from ABC’s drama development files.  Moreover, ABC maintained that there was no centralized “script library” where executives can search and access scripts.  Finally, the people that worked at ABC in 1977 and had knowledge of Spinner’s script were long gone, and there was absolutely no evidence that any of them had ever talked to the creators of LOST. 

Accordingly, the Court found that Spinner had only shown, at best, a bare possibility of access based on speculation, supposition, and guess work.  Thus, any inference of use would have to be based only on substantial similarity.  In an idea submission case, similarities that do not result from copying are “similarities… without legal significance.”  Teich at 804.  Therefore, any alleged similarity between LOST and Spinner’s idea was of legal insignificance.

The Court then focused on evidence that LOST had been independently created.  When a plaintiff, such as Spinner, infers use of the idea, the inference can be negated by evidence that conclusively demonstrates that the defendant independently created the work.  The evidence of independent creation must be “clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved.”   Teich v. General Mill, Inc., 170 Cal. 2d 791, 797 (1959). 

In Spinner, the evidence of independent creation included development notes from Braun’s initial pitch at the company retreat, the first draft of the script written by the contract writer, and notes from the brainstorming session attended by the ABC executives and the writers of LOST.  In summary, the Court was able to see the evolution of the LOST television show, without any influence of Spinner’s idea.  Therefore, the Court held that ABC established the independent creation defense as a matter of law.

The Court in Spinner nicely elucidated the framework for the use element of idea theft cases based on an implied-in-fact contract.  Although Spinner was directed to the entertainment industry, implied-in-fact contracts exist in all industries, such as technology, advertising, and consumer products. 

Those who produce “ideas” should document milestones in the development process.  This applies to both sides, but perhaps with different objectives.  As seen in Spinner, the documentation, such as meeting transcripts, brainstorming notes, and script outlines, were essential in ABC’s defense for independent creation.  Contrast that with ABC’s policy for retaining unreturned scripts.  Spinner predicated his use theory based on ABC’s retention policy.  Had ABC retained Spinner’s 1977 script, and had it shown up in ABC’s drama development files, the story may have come out differently (at least on summary judgment) for Spinner.

Those who believe that their “idea” has been purloined, should remember that in an idea theft case based on the implied-in-fact contract, similarities that do not result from copying are similarities without legal significance.  In most jurisdictions, ideas are as “free as air,” and being essentially “free,” courts look with a very jaundiced eye on those who would charge for the thought.