Ideas for a television series or a movie are rather difficult to protect under conventional trade secret law. The law does not allow someone to own an idea. You can own a way to carrying out an idea (patent) or a way to express the idea (copyright), but you can’t monopolize a concept.
Given limits of intellectual property law, what steps can you take to protect your concept for a media production?
- Keep your idea confidential by limiting access to the information, especially written documents or other records containing the idea;
- Marking all records containing the idea “confidential.”
- Use confidentiality agreements with anyone you share your idea with to retain its protected confidential status.
- Keep detailed records of all disclosures of your idea (who, when and what was disclosed).
- Clarify in writing any agreement or expectation of compensation for use of the idea.
California has a state law principle of implied-in-fact contract that can offer some protection to those who submit ideas that are later used by the media industry. 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 result from the use without compensation.
There is not as developed common law in New York on this issue, but a viable claim may be asserted under similar theories. New York courts are often influenced by the decisions of California courts. They are not obligated to adopt a similar ruling, but they can accept such “persuasive” evidence of what other similar jurisdictions are doing.
Media industry members often defend against these claims by arguing that they independently created the idea or concept. If successful in proving this to be the case, it is an absolute defense. Thus, a plaintiff will need to show access to the idea and infer that idea was conceived of by the plaintiff and “ripped off” by the defendant. Common genres and plots will be more difficult, but more unique scenarios are less likely to be coincidentally duplicated by others.
Record keeping will be the key to these cases. Memoranda and meeting notes that detail the idea conception and development: meeting transcripts, brainstorming notes, script outlines and draft comments and revisions. Also key will be to show access to the idea. Detailed records of disclosure and access to sensitive documents can create the paper trail of access necessary for a successful claim.
Documenting milestones in the idea development or commercialization process will provide the necessary evidence for both claimant and the defending media entity.