Special Alert

The Ninth Circuit recently held that the copyright law preempts state law breach of contract claims when there was no implied promise of payment regarding a partnership to produce a television program. In Montz v. Pilgrim Films & Television Inc., the plaintiffs sued NBC, the Syfy Channel, and several others involved in the production of Syfy's Ghost Hunters, claiming the show was based on a concept they had presented to them. The copyright law preempts state law claims, such as contract and implied contract claims, when those claims pertain to copyrightable "works of authorship" and are "equivalent" to the rights of the copyright owner. Here, the court held that the rights asserted by the plaintiffs were equivalent because there was no implied promise of payment, only an expectation that the plaintiffs would retain control over their work, a right equivalent to ownership. While the court's reasoning is not entirely clear, the case does suggest that most copyright holders disclosing ideas to third parties will ultimately have to rely on their copyright rights as opposed to any state law claims.

Tip: When pitching an idea, agree in writing that if the idea is used, you will be paid a set amount or an amount to be negotiated, subject to a stated floor. Also, state that the idea is confidential. If receiving an idea, try not to agree to payment. Instead, agree that the one pitching the idea will rely solely on copyright for protection. Note, the more the idea is fully expressed—in a script, book, storyboard, drawing or rip-o-matic—the more protection the idea has. Ideas that have been committed to paper only in the most limited form are not entitled to much protection, even under copyright law, which protects only the literal expression of the idea.