Google Answers Logo
View Question
 
Q: Theft of Intellectual Property ( Answered,   2 Comments )
Question  
Subject: Theft of Intellectual Property
Category: Miscellaneous
Asked by: eggi-ga
List Price: $200.00
Posted: 21 Jan 2003 20:39 PST
Expires: 20 Feb 2003 20:39 PST
Question ID: 146815
What recourse do I have for stolen Intelectual Property regarding a
concept for a television show and subsequent movie franchise that was
stloen over twenty years ago, but has continued to bring in hundreds
of million of dollars to those who took a copyright on it and does not
show signs of slowing down? I was very young and did not realize I was
"pitching" a concept to two tv producers who then claimed it as their
own. It was not. It's success began in the 70s and continues today.
What is the first step in bringing what sort of lawsuit against them?
It is a good time, for if I have a leg to stand on, they would not
want me to somehow prevent them from opening a movie based on this
concept of mine this summer.

Request for Question Clarification by sycophant-ga on 21 Jan 2003 21:07 PST
Are you in the United States? And did your pitch occur in the US?

Can you provide any details about how close their concept matches
their show? In other words have they taken your idea in it's entirity
or simply developed a similar concept using ideas from your pitch?

Regards,
sycophant-ga
Answer  
Subject: Re: Theft of Intellectual Property
Answered By: prof-ga on 21 Jan 2003 22:49 PST
 
Eggi,

I may be just the person to answer this for you. I'm a screenwriter
and have been involved in both television and movie deals - and a
number of Hollywood pitches. I've been involved with or heard of
dozens of stories similar to yours, and have done a good bit of
research on my own on intellectual property and performance copyright
laws.

From what I gather from your situation, you pitched an idea for a
show, and subsequent movie, and this idea was stolen from you.
Unfortunately, this happens on a daily basis in Hollywood, New York,
and elsewhere.

First, let me encourage you to get in touch with an attorney and get
his professional assessment of your specific situation. I am not an
attorney, and cannot give legal advice. A qualified attorney will be
able to find possibilities I cannot through this type of interaction.

Second, I'm assuming you live in the United States, and that this
pitch occured within the United States. If this is not the case, let
me know and I'll do some more investigating. While some state laws may
apply, your primary recourse would be through United States Federal
statutes. Second, as pointed out by sycophant, your idea must closely
resemble the final idea presented. The rule of thumb is that if 10% is
changed, you're granted a new copyright.

Let me state in advance that the news is not very good. But then
again, it's not all bad either.

Here is some basic material from the US Copyright office:

US Copyright Office information
http://www.loc.gov/copyright/

According to this website, here is an explanation of what is protected
and when your work is protected by copyright:

"What does copyright protect? 
Copyright, a form of intellectual property law, protects original
works of authorship including literary, dramatic, musical, and
artistic works such as poetry, novels, movies, songs, computer
software and architecture. Copyright does not protect facts, ideas,
systems, or methods of operation, although it may protect the way
these things are expressed."

"When is my work protected? 
Your work is under copyright protection the moment it is created and
fixed in a tangible form so that it is perceptible either directly or
with the aid of a machine or device."
http://www.copyright.gov/faq.html#q2

Let me explain a bit about copyright in light of these definitions,
since I think this is important to your understanding of the answer.
Technically, a copyright is created whenever you create an idea, and
commit it to paper, or other tangible format An old Hollywood adage is
"copyright does not protect an idea, only the expression of that
idea". There are some legalities such as putting the copyright notice
and year on the work, but even this isn't very important. The bottom
line is that copyright protects the expression of ideas. It does not
protect verbal materials such as a speech - any forms of speech except
mechanically recorded.

The real problem is that the government, in its infinite wisdom, has
decided to let the courts fight out who came up with an idea's
expression first. So if two people publish the exact same work at the
exact same moment, and both claim copyright rights, the matter will
have to be solved by the court system. One or the other party will
have to show proof that they created the work first. Even if the true
producer of the work does not publish, the publisher can be sued if
there is proof that he first produced the work.

In Hollywood, at least, many producers will even steal completed
screenplays, or rough approximations, and go into production. This
happens much more frequently than you can imagine. They assume that
the offended party cannot afford a lengthly court battle (typically
lasting 5, 10, or more years) and will eventually go away. Also, most
producers today ask you to sign a comprehensive release removing them
from all responsibility if they steal your script. If you signed such
a release, you're out of luck. In addition, the producer will likely
claim that he had come up with the idea independently and had someone
working on a script at that very moment. Hard to disprove.

Today, most people don't even bother to apply for a true
government-issue copyright since it is relatively meaningless. If
someone claims they produced it first, the court will decide based on
the physical evidence. And therein lies the rub. You really need to
have some type of proof - or possibly overwhelming evidence from
eyewitnesses, etc. - that you produced the work.

What people generally do is write down their idea, treatment,
screenplay, etc., and mail it to themselves. They keep it unopened as
proof of the date their material was created. There are also several
organization which will catalog and keep these materials for you for a
period of time.

My initial gut reaction is to say that you're totally out of luck for
the following reasons. These are of course assumptions. If any of
these are not the case, let me know so I can look into the
possibilities.

1. You only pitched an idea, and not the expression of that idea. So
copyright does not apply.

2. You do not have any physical evidence of when and what you created.

3. You do not have a number of witnesses who will vouch for your side
of the story.

However. Here are some courses you can possibly pursue, in no
particular order:

1. You can hire a big-name Hollywood lawyer to start suit. Using any
other type of lawyer just won't work. Everyone knows it's a legal
ploy. However, often the offending parties just don't want the
publicity, and will settle out of court. This is especially true if
they really did steal your idea and they know it. The crux here is not
to ask for too much. If you ask for significantly more than the
lawsuit is likely to cost, you're out of luck. But if they're coming
out with a movie this summer, the time may be right and the last thing
they need is bad publicity. They just may give you a few hundred
thousand just to go away. Not the best deal, but better than nothing.

2. Depending on your age when this happened, you may be able to play
that angle by claiming you were taken advantage of. If you were over
21, you're probably out of luck. This is more of a fraud case, but
your attorney may want to look at this option.

3. You can force the offending party into court by simply claiming
copyright and developing your own show, movie, or concept based on
your idea. For example, you could put out a comic book, or write a tv
show script. Ideally you also created the name, and can use this in
promotion. At the minimum you'll get press, tell your side of the
story to the media, and force them to sue you. They will. You better
be ready and have a plan on how to react. This is obviously risky so
be sure to get the guidance of a good attorney.

4. Get in the faces of people in the movie industry, and tell as many
people as possible about your side of the storey. Go to LA and talk to
as many important people as you can. Maybe someone has a score to
settle, has a friend in the media, or can offer some insider guidance.
This is a long shot, but depending on your "clout value" may be an
option.

Unfortunately, your recourse at this point is probably not through the
traditional legal system for the reasons given above. Instead, your
ultimate goal has to be through the media and public opinion. Look
into ways that involve these elements. Do you have any contacts in the
media? Take them to lunch.

None of these methods are cheap, and if money is an issue, you're
totally out of luck.

Here are some additional links for you to conduct your own research:

10 Big Myths about copyright explained
http://www.templetons.com/brad/copymyths.html

Benedict.com
http://www.benedict.com/
Has lots of good information about copyright law

Intellectual Property Law
http://www.intelproplaw.com/
Good reference site on intellectual property law

World Intellectual Property Organization
http://www.wipo.org/
Good info on intellectual property laws

International Association for the Protection of Intellectual Property
www.aippi.org

Copyright Law Reference
www.loc.gov/copyright/title17

Copyright Rules/Regulations
www.loc.gov/copyright/title37 

I'm certainly not finished with this question. Can you give me some
additional information about the circumstances of the "pitch". How old
were you? How extensive were the details of your pitch (a few
sentences, or a 2 hour discussion with comprehensive details)? How
formal was the pitch (over drinks at a bar, or in the producer's
office with an appointment)? Did you sign a release? Were you
represented by anyone such as an agent? Were there any independent
witnesses? Is there any way at all that you can prove that you
produced the idea? Is there any physical evidence such as a dated
notepad? Is there a notation of an appointment in an old appointment
book?

I'll look forward to your response. And thanks for the question!

Prof
Comments  
Subject: Re: Theft of Intellectual Property
From: sycophant-ga on 21 Jan 2003 22:53 PST
 
Drat!

I went ahead and researched this question, but it seems I didn't have
a lock on it.  I see Prof's answer is very detailed, and reaches some
similar points to mine, but I came up with a few slightly different
conclusions...

I will post my draft below anyway, perhaps it can be of use to
yourself or Prof in continuing research.

Regards,
sycophant-ga
Subject: Re: Theft of Intellectual Property
From: sycophant-ga on 21 Jan 2003 22:53 PST
 
It seems that various aspects of your creation may be covered by
different areas of intellectual property law. For example specific
creations, such as titles, scripts and graphics would most likely be
covered by copyright. An author's copyright over their work is
automatic in most circumstances, and does not need to be specifically
asserted or registered, however registration and other means of record
serve to better protect the rights of the author in the event of a
dispute.

The problem, however, is that “ideas” are not covered by copyright,
only artworks. This means that the concept itself may not be protected
in that manner, however the specific artworks surrounding it may be
(hence my mention of titles, scripts and graphics).

For more information of Copyright, see the following pages:
American Bar Association, Copyright Basics
http://www.abanet.org/intelprop/comm106/106copy.html

Cornell Law, Law about... Copyright
http://www.law.cornell.edu/topics/copyright.html

Additionally, Patent protection does not seem to apply to television
concepts, at least as detailed in this brief about patents:
http://www.abanet.org/intelprop/comm106/106patent.html

Also, there is not evidence of any successfully patented television
concepts in patent searches I have conducted though the USPTO's search
facility (http://www.uspto.gov/patft/)

Legal protection for Television concepts seems to be a very tricky
business, as I discovered in reading the following essay about the
subject:
http://www.aftrs.edu.au/studwork/essays/legalprot.html

The essay above is specifically of relation to Australian law, but it
seems that the general concepts hold true in many countries. The idea
put forward in the essay is, that in the absence of copyright
protection, the best protection for a TV show idea or format is the
protection afforded to confidential information.

Methods of protection include:
“- Legal means of protection includes copyright, trademarks,
confidentiality and contracts
- Pitch your idea "in confidence" . Acquire a confidentiality
agreement and try to obtain a signature before pitching your format.
- Mark written submissions as  and "Confidential" followed by the
date of creation, the creator(s) and their contact details at the
bottom of each page.
- Elaborate the concept in writing as fully as possible – written
submissions do attract copyright law
- Register or deposit your ideas
- Protect names, slogans and titles by trademark registration”
(Source: http://www.tvformats.com/formatsexplained.htm#legal)

However, it seems that a television show concept could well fit the
definition of a trade secret.

According to one article on the issue 
(http://www.inc.com/articles/legal/ip/confidentiality/20943.html):
“In most states, a trade secret may consist of any formula, pattern,
physical device, idea, process,compilation of information, or other
information that is both of the following:
- Provides the owner of the information with a competitive advantage
in the marketplace
- Is treated in a way that can reasonably be expected to prevent the
public or competitors from learning about it, barring improper
acquisition or theft”

The article further goes on to discuss courses of action for people
who discover trade secrets have been improperly used or disclosed.

“Every state has enacted a law prohibiting theft or disclosure of
trade secrets. Most of these laws are derived from the Uniform Trade
Secrets Act (UTSA), a model law drafted by legal scholars.

A trade secret owner can enforce rights against someone who steals
confidential information by asking a court to issue an order (an
injunction) preventing further disclosure. [...] A trade secret owner
can also collect damages for any economic injury suffered as a result
of the trade secret's improper acquisition and use.”

The article also includes this list of state laws protecting trade
secrets:
“Alabama*         Ala. Code.  8-27-1 et seq.
Alaska           Alaska Stat.  45.50.910 et seq.
Arkansas         Ark. Stat. Ann.  4-75-601 et seq.
California       Cal. Civ. Code  3426 et seq.
Colorado         Col. Rev. Stat  7-74-101
Connecticut      Conn. Genl. Stat.  35-50 et seq.
Delaware         Del. Code Ann. Title 6  2001 et seq.
D.C.             D.C. Code Ann.  48-501 et seq.
Florida          Fla. Stat Ann.  688.001 et seq.
Hawaii           Haw. Rev. Stat.  482B-1 et seq.
Idaho            Idaho Code  48-801 et seq.
Illinois         Ill. Ann. Stat. ch. 140  351-59
Indiana          Ind. Code. Ann.  24-3-1
Kansas           Kan. Stat. Ann.  60-3320 et seq.
Louisiana        La. Rev. Stat. Ann.  51:1431 et seq.
Maine            M.R.S.A. Title 10  1541 et seq.
Maryland         Md. Com. L. Code  11-1201 et seq.
Minnesota        Minn. Stat Ann.  325C.01 et seq.
Montana          Mont. Code Ann.  30-14-401 et seq.
Nebraska         Neb. Rev. Stat.  87-501 et seq.
Nevada           Nev. Rev. Stat.  600A.010 et seq.
New Mexico       N.M. Stat. Ann. 57-3A-1 et seq.
North Carolina*  N.C. Gen. Stat.  66-152 et seq.
North Dakota     N.D. Cent. Code  47-25.1-01 et seq.
Oklahoma         Okl. Genl. Laws  6-41-1
Oregon           Or. Rev. Stat.  646.461 et seq.
Rhode Island     R.I. Gen. Laws  6-41-1 et seq.
South Dakota     S.D. Cod. Laws  37-29-1 et seq.
Utah             Utah Code Ann.  13-24-1 et seq.
Virginia         Va. Code. Ann.  59.1-336 et seq.
Washington       Wash. Rev. Code. Ann.  19.108.010 et seq.
West Virginia    W. VA. Code.  47-22-1 et seq.
Wisconsin        Wis. Stat. Ann.  134.90

* Although they have adopted portions of the UTSA, Alabama and North
Carolina are considered to be "major departures" from the UTSA because
Alabama narrows trade secret protection while North Carolina broadens
it.suffered as a result of the trade secret's improper acquisition and
use.”

However the UTSA includes a statute of limitations, it seems, of three
years from the time the misappropriation was discovered. Which, based
on the details may mean the protection afforded to you by possible
trade secret laws has expired. However, as many states have adopted
and modified the UTSA, it maybe that your state has no such statute of
limitations, or perhaps has exceptions that could be relevant to your
case.

An FAQ about the UTSA and trade secret protection can be found at
Lawguru.com:
http://www.lawguru.com/faq/19.html

I am afraid it seems that there is no clear case for you to follow, as
even with extensive documentation and prior work CBS recently failed
to stop ABC from airing a British clone of Survivor:

 “ABC Can Show Celebrity Survival Program” (Associated Press)
http://tv.yahoo.com/news/ap/20030113/104252268000.html

“CBS Loses Bid to Stop ABC's Reality Show” (Reuters)
http://news.yahoo.com/news?tmpl=story2&cid=638&ncid=579&e=13&u=/nm/20030114/en_nm/media_cbs_dc

While the circumstances in this case seem quite far from yours, the
basis is similar, CBS sued ABC, claiming that the show they were
planning to air was a direct derivative product of CBS's Survivor.
The law suit claimed that the English show directly copied the look,
feel and format of Survivor, however the judge ruled against CBS on
the grounds (as detailed above) that copyright only protects specific
expression of ideas, not the abstract concept. The fact that the shows
had a different tone was enough to prevent CBS from winning.

However, this is probably not the end, it is simply the basic outcome
of the information I have been able to gather as a layman. I would
suggest contacting intellectual property lawyers and discussing your
case in a little more detail to see what suggestions they can come up
with. The law is often found to be quite flexible in the hands of an
expert.

But all is not lost. Based on all I have been able to learn, it seems
that as long as there are some differences in your movie concept and
the existing incarnation you may well be able to go ahead anyway. As
is detailed numerously above, the protection of specific expression is
the only thing covered by copyright law, and as you have not been
privy to any confidential information from the producers of this show,
you can't be contravening trade secret law. As long as you are not
planning to use their title, graphics or trademarks, it seems very
likely that you could easily be able to produce your own similar, yet
original work.

This is common within the film industry also. Armageddon and Deep
Impact, Volcano and Dante's Peak – and they are just the first two
instances that spring to mind.

So to summarize:

"What recourse do I have for stolen Intellectual Property regarding a
concept for a television show and subsequent movie franchise that was
stloen over twenty years ago?"
Depending on the circumstances and evidence, it seems you have very
little recourse.

“What is the first step in bringing what sort of lawsuit against
them?”
The first step, as with any lawsuit, would be to contact a lawyer who
is a specialist in that area of law.

However... “It is a good time, for if I have a leg to stand on, they
would not
want me to somehow prevent them from opening a movie based on this
concept of mine this summer.”
It seems that regardless of your situation you can probably still make
a film based on this concept, as the company involved has almost as
little recourse as you do. This will be especially true if you have
any proof of your original idea from your unintentional pitch, which
you would need in order to take legal action anyway.


I understand that this probably isn't the answer you were ideally
seeking, but I hope that I have been able to address the issues in a
clear and accurate manner, and provide you with some further avenues
to pursue.

Regards,
sycophant-ga

Important Disclaimer: Answers and comments provided on Google Answers are general information, and are not intended to substitute for informed professional medical, psychiatric, psychological, tax, legal, investment, accounting, or other professional advice. Google does not endorse, and expressly disclaims liability for any product, manufacturer, distributor, service or service provider mentioned or any opinion expressed in answers or comments. Please read carefully the Google Answers Terms of Service.

If you feel that you have found inappropriate content, please let us know by emailing us at answers-support@google.com with the question ID listed above. Thank you.
Search Google Answers for
Google Answers  


Google Home - Answers FAQ - Terms of Service - Privacy Policy