The Artful Jurist

So you’ve come up with a really great idea for a book, movie, TV show, play, song, what have you. And, like all people with a story worth telling, you logically conclude it’s a story worth selling. That is, unless you’re planning on self-publishing or self-producing, you’re now in the market for someone who’d be interested in buying the publishing or producing rights to your brainchild. Hey, it’s happened before. Someone drills down into their own personal psyche to come up with a brilliant idea, and it turns into a profitable gusher. So why shouldn’t it happen to you?

But here’s the stumbling block that trips up so many facing this situation. On the whole, I’ve never met a more secretive bunch than the people who create intellectual property. The fear is that, the moment a breath of their clever idea leaks out, someone will steal it. And, well, hey…we’ve heard those horror stories, too. Right?

So therein lies the conundrum. You can’t sell the idea unless you tell someone about it, and you can’t tell someone about it while also keeping it a carefully guarded secret. So what’s a poor creative genius to do?

Well, first, it’s important to know that ideas, by themselves, are not protected by copyright. In fact, ideas are specifically excluded by the U.S. copyright law. And the logic of this is highly defensible. Imagine if someone could copyright the idea of two polar opposite characters reluctantly joining forces to battle some evil. If that idea were suddenly locked up and no longer usable by anyone, Hollywood would immediately shut down its studios and open up a hot dog stand instead. We simply can’t have that.

Rather than the ideas, themselves, being copyrightable, it’s the expression of ideas that’s protected by copyright. Typically, that means any tangible form of expressing ideas is protected so that someone else can’t come along and just appropriate the same words, images, sounds, or whatever else you’ve used to express your ideas. That would be copyright infringement, pure and simple.

But let’s say you’ve got an idea for a screenplay that you’re pitching to a producer. What’s to prevent that producer from taking your idea about two polar opposite characters who reluctantly join forces to battle some evil, making a few choice changes, and then making the film without paying you or giving you credit? Are there any precautions you, as the idea generator, can take?

I posed this question recently to some attorney colleagues. And, not surprisingly, there were no absolutes offered. However, most seemed to agree that some sort of written agreement prior to the pitch is certainly in order. A nondisclosure agreement or an idea submission agreement should specifically state the intention of the one doing the pitching to offer the idea for possible sale to the one receiving the pitch. The agreement would further state that, if the one receiving the pitch later decides to use that idea in any way, the one who pitched it would be entitled to money, credit, etc.

The biggest problem with that approach is that, unless you’ve got the clout of a Steven Spielberg, most people on the buying end of these pitches won’t go anywhere near such an agreement. The reason isn’t because they’re looking to steal your intellectual property. Rather, they’re just afraid that you’re going to come in with an idea that resembles something else they’re already working on, and later you’ll accuse them of stealing your idea when, in fact, they actually didn’t. You got any idea how many “two polar opposite characters reluctantly join forces to battle some evil” pitches movie producers hear every week? And producers don’t like being sued any more than you do. So most would just rather not hear a new idea than risk getting hauled into court over some similar project that’s already in the works.

That being the case, you probably won’t be able to force the issue on a pre-pitch agreement. Then it comes down to a cost-benefit analysis of whether it’s worth talking to a particular individual about your idea. As we said, if you want to sell it, you’ve got to tell someone.

There may be some other things you can do to help lessen the risk when you’re pitching ideas. And, if there’s interest, that might be the topic of a future post.