Protection for Inchoate Entertainment

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Deal Making- Due to the lack of long term contracts, there are a lot of negotiating in Hollywood.

Play or Pay Clause- What this means is that some actors who made contracts to appear in films, if the film does not get made or the actor is replaced then they are in breach of contract. What are their damages? Money they should be paid and some sort of a resume builder. The resume builder though is speculative and courts won’t allow speculative damages. Nonetheless production companies don’t want to take a chance. 13th Amendment (Slavery) you can’t force an employee to take a job they don’t want, but you can force the employer to hire someone they don’t want. It is a disincentive to good filmmaking.

Overall Development Deals- Producers who enter overall development deals with studios sometimes have an incentive to make their films at other studios. Studios enter overall development deals with producers to ensure a steady flow of product. The producer benefits too by sometimes having an office on the studio lot, a secretary and perhaps a development person and more benefits. Essentially the overall development deal takes the financial risk of producing off a producer’s shoulders and places it on the studio’s shoulders. Exclusive- The producer agrees to distribute all his projects through one studio. First-Look- Gives the studio first look or first crack at the producer’s projects. It is up to the studio to accept. This is preferred by the producer because the producer likes alternatives and might know how to use this to get leverage. Housekeeping- When the producer receives an office and development expenses but no advance. Typically this deal is offered to novice producers.

Option Contract- Make sure you also agree the purchasing price, or else they can quibble with the price and then you have an unenforceable worthless option on your hands.

Step Deals- When hiring writers on a step by step basis.

Merchandising Deals- There are product placement agents. The law does not always require a release to show a product in a film. Assuming you don’t disparage the product, it is unlikely a manufacturer could successfully sue simply because its product was shown without consent. Your distributor and insurance carrier may want a release. Release- You won’t have to bother writing to the manufacturer for permission. Freebies- Agents can give producters cartons of candy bars, free airline tickets or truckload of beer. Promotion- If McDonalds agrees to distribute millions of your movie cup to its customers, and spend millions advertising the promotion, the movie benefits from increased public awareness. Cash- Sometimes.

Deal Making Timeline- 1. Development a. Retainer agreement with attorney and/or agent b. Literary Acquisition or Option Agreement c. Writer Employment Agreement 2. Pre-Production a. Actor, Director and crew Employment Agreements b. Completion bond agreement c. Errors and Omissions Insurance d. Worker’s Compensation, Negative Film and Other Insurance e. Location releases and permits f. Signatory agreements with union and guilds g. Financing and producing agreements 3. Post-Production a. Distribution agreement, if not already secured b. Music permissions c. Film and tape clip permissions d. Distribution/exhibitor agreements


Property based thinking, but morass. Contract deal. 3) Implied in fact contract- waiting for a court to get in there a bit more and make sure things are fair. 4) Implied in law contract- 5) Tort.

Ideas- Property- An idea is usually not regarded as property, because all sentient beings may conceive and evolve ideas throughout the gamut of their powers of cerebration and because our concept of property implies something which may be owned and possessed to the exclusion of all other persons Desny. Contract- The policy that precludes protection of an abstract idea by copyright does not prevent its protection by contract. Even though an idea is not property subject to exclusive ownership, its disclosure may be of substnail benefit to the person to whom it is disclosed. That disclosure may therefore be consideration for a promise to pay…Even though the idea disclosed may be widely known and generally understood it may be protected by an express contract providing that it will be paid for regardless of its lack of novelty. Implied Contract- Is one the existence and terms of which are manifested by conduct. The acceptance of the consideration offered wth a proposal, is an acceptance of the proposal. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the persons accepting. Consideration can even be a moral obligation originating in some benefit conferred upon the promisor. The difference with this and a contract, is that you are obligated to pay someone for information in an imlied contract but that information is yours to use as you see fit, there is no more red tape. It is not the idea that matters, but the saying of the idea. Densy. The law will not imply a promise to pay for an idea form the mere facts that the idea has been conveyed, is valuable, and has been used for profit. Elements- After consideration has been given, you can only recover if 1) before or after disclosure he has obtained an express promise to pay; or 2) the circumstances preceding and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances, show a promise of the type usually referred to as implied or implied-in-fact. Breach of Confidence- Feris, an actionable breach of confidence will arise when an idea, whether or not protectable, is offered to another in confidence, and is voluntarily received by the offeree in confidence with the understanding that it tis not to be disclosed to others, and is not to be used by the offeree for purposes beyond the limites of the confidence without the offeror’s permission. IN order to prevent the unwarranted creation or eextension of a monopoly and restraint on progress in art, a confidential relationship will not be created form the mere submission of an idea to another. There must exist evidence of the communicaton of the confidentiality of the submission or evidence from which a confidential relationship can be inferred. Factors- 1) proof of the existence of an implied in fact contract; proof tha the material submitted was protected by reason of sufficient novelty and elaboration; or proof of a particular relationship such as partners, joint adventurers, principal and agent or buyer and seller under certain circumstances.

Things to put- 1) explain at outset, my idea, I expect to be paid; 2) Bring witness; 3) Sent “record marker” letter; 4) Get them to sign a K; 5) Record audio (secret?); 6) Follow up appointment. 7) Write a treatment and thereby go from mere idea to expression. 8) Keep notes; 9) Lie convincingly


Contents

Theft of Ideas, Breach of Confidence, Development Deals, Submissions

Ideas

  • there is no copyright protection for this
  • but there are other theories of recovery

Property

(NY but no CA decisions)

Express Contract

Buchwald v. Paramount Pictures Corp.

(Cal. App. 1990) Judge Schneider

FACTS: Plaintiff submitted registered treatment for consideration by movie studio for new movie; studio began to work on project then abandoned it, only to revive project later without plaintiffs

  • Buchwald wrote a treatment
  • Paramount liked it and wanted to develop it into an Eddie Murphy project
  • Paramount abandoned the idea
  • Buchwald entered into an agreement with Warner Brothers but cancelled when it was discovered Paramount was shooting “Coming to America”
  • the movie came out and Buchwald got no credit

ISSUE: Sole dispute in this matter is whether Paramount breached its contract with Buchwald DISCUSSION: No question as to access of work, similarity substantial; Court determines that term “based upon” term in contract can be interpreted as “an ordinary person would find that any two items had more similarities than dissimilarities”


Ct. said this is primarily a breach of contract case

  • Buchwald was entitled to payment if Paramount produced a feature length theatrical motion picture based upon author’s work

Ct. goes through a quasi-copyright analysis with access and similarity

  • there is no issue on access – Murphy had access
  • this doesn’t require as much similarity under this analysis
    • where the evidence of access is overwhelming, not as much on this point is required
    • ct. points to the similarities described by the attorney and said those alone are sufficient
    • ct. also looks at the facts of the development of the project


Implied-in-Fact Contract

Desny v. Wilder

(Cal. 1956)

FACTS: Plaintiff pitched his movie idea to defendant Wilder (director) secretary and discussed payment with her, also submitted written treatment; movie later made from plaintiff's idea but without compensation to him was employed by defendant Paramount movie studio as writer, producer and director;

DISCUSSION: Plaintiff’s dictation to secretary is the same as submission in typed form, evidence supports that defendants received synopsis through secretary and they are charged with knowledge of conditions upon which synopsis was accepted

  • Ideas cannot be regarded as property usually, but they can be the basis of a contract
    • Disclosure of idea may be of substantial benefit to the person to whom it is disclosed
    • Conveyance of idea can be valuable consideration and can be bargained for
  • In entertainment field, producer may agree that he will pay for service of conveying a valuable idea to him
    • Inferred or implied promise must be based on circumstances known to producer at time of disclosure of idea and he must voluntarily accept disclosure, knowing the conditions
  • Must have opportunity to reject disclosure
  • plaintiff called Wilder’s office and said he had an idea to do a movie on a boy who was trapped in a cave
  • the secretary told him to prepare an outline, and he did
  • he gave it to the secretary over the telephone
  • plaintiff told the secretary they could use the story only if they paid him the reasonable value
  • she said if Wilder did it, they would pay
  • they did the movie and didn’t pay him and it included a fictional scene which was in his synopsis
  • this deals with the idea to produce a life-story about a boy who was stuck in a cave
  • plaintiff lost on summary judgment

Ct. reversed To recover for an abstract idea: Before or after disclosure, plaintiff obtained an express promise to pay, or the circumstances preceding the and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances, show a promise of the type usually referred to as “implied” or “implied-in-fact”

  • when the plaintiff disclosed his basic idea to the secretary, these weren’t met but the question is whether by accepting the synopsis, they did

Grosso v. Miramax

(9th Cir. 2004) J. Schroeder

  • Grosso wrote the screenplay for “The Shell Game” and claims that Miramax stole his idea for the movie “Rounders”
  • breach of implied contract and violation of copyright

Ct. said summary judgment on the copyright claim is proper because the works are not substantially similar – they both use uncopyrightable poker jargon Breach of Implied Contract summary judgment is reversed

  • in Desny the court held a contract exists where “the circumstances preceding and attending disclosure, together with the conduct of theofferee acting with knowledge of the circumstances, show a promise [to pay] of the type usually referred to as ‘implied’ or ‘implied in fact.’”

To establish a Desny claim for breach of implied-in-fact contract, the plaintiff must:

  1. show that the plaintiff prepared the work
  2. disclosed the work to the offeree for sale
  3. and did so under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work.

here he submitted the work with the expectation, which was understood by the defendants, that he would be compensated The third element saves the claim from preemption

  • the Copyright Act, 17 U.S.C. § 301 , establishes a two part test for preempting state law claims
  1. the work at issue comes within the subject matter of copyright, and

the state law rights are “equivalent to any of the exclusive rights within the general scope of copyright.” the bilateral expectation of compensation transforms the action from one arising under the federal statute to one sounding in contract


Implied-in-Law/Unjust Enrichment/Quasi-Contract

Tort

Breach of Confidence

Faris v. Enberg

FACTS: plaintiff created idea for format of sports quiz show and registered format of idea, then contacted defendant about the show, show later appeared on television with defendant as emcee; plaintiff filed complaint

DISCUSSION: Facts of case do not support that idea was disclosed in confidence; Plaintiff can now say that he would not have disclosed without confidence but there is no evidence that defendant knew that disclosure was in confidence; was not communicated during discussions

What advice would you give to Faris if you could go back in time, to protect his idea?

  1. Explain at outset; my idea, I expect to get paid
  2. Bring Witness
  3. Send a “record making letter”
  4. Get them to sign a contract
  5. Bring in a tape recorder (secret? in CA you are not allowed to do that – it differs state by state)
  6. Set a follow-up appointment to show future discussions
  7. Write a treatment and thereby go from mere idea to expression which would then take you into the realm of copyright law
  8. Deposit the treatment, sealed, with the Writer’s Guild
  9. Keep notes (so you recall what happened)
  10. Lie convincingly

Theft of Ideas, Breach of Confidence, Development Deals, Submissions

Land v. Jerry Lewis Productions, Inc.

FACTS: Parties had discussions about a movie, discussing possible ideas and plaintiff shared a script that she had written and asked him to consider it; she later sent a release form with he script; script was rejected but movie was later made that was similar to script

DISCUSSION: Question of substantial similarity between two works: though there are similarities, they cannot support plagiarism claim; Breach of contract: because release signed and submitted at a later date, it only applies to the script and not to the earlier conversation between the parties

Notes

  • Studios and production companies are concerned about possible claims regarding unsolicited manuscripts
    • Some will request submitter to sign submission agreements, often with provisions that studio is not obligated to read material but if material is reviewed, fee will be paid
    • Some state that studio not obligated to pay if material is used
    • Many studios or production companies prefer to work with writers that are represented by an agent approved by WGA or experienced attorney

Grosso v. Miramax Film Corp.

FACTS: plaintiff claims that defendant stole his ideas from his screenplay entitled “The Shell Game” and turned it into a movie (“Rounders”)

DISCUSSION: Only similarity is poker setting and usual dialogue in poker setting (common and unprotectable poker jargon)

  • Desny claim requirements:
    • Plaintiff prepared work
    • Disclosed work to offeree for sale
    • Circumstances support conclusion that offeree voluntarily accepted disclosure knowing condition on which tendered and reasonable value of work
  • Copyright preemption two-part test:
    • Work at issue comes within subject matter of copyright
    • State law rights equivalent to any of exclusive rights within general scope of copyright
    • To survive preemption, cause of action must protect rights that are qualitatively different from rights protected by copyright (must allege “extra element” that changes nature of action)
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