The Second Circuit (an important circuit) recently decided FOREST PARK PICTURES v. UNIVERSAL TELEVISION NETWORK, INC. (June 26, 2012), allowing a “pitch man” to overcome a dismissal of his law suit that claimed Universal took his idea for a television show without paying for it.

Raw ideas that cannot be patented (such as ideas for themes or methods of performance of a TV show) can only be protected by a contract, in most cases.  Contrast this with, for example, a script, character development, book, adaptation, or short film – all of which can be protected by copyright.  So, people who have a raw idea but no real copyrightable work behind it (and in some cases, even when then they do have copyrightable content, see Fischer v. Viacom International, 115 F. Supp 2d 535 (D. Md. 2000)) must resort to a delicate balance of asking the person they disclose the idea to, to pay them if they use the idea (or not use the idea without an agreement on compensation).  Many content owners will not make such an agreement.

In this case, the plaintiff alleged that it had “created a written series treatment for the idea, including character biographies, themes, and storylines” and mailed that to an executive at USA Network, and then later had a meeting with that executive to “pitch” the show; the plaintiff alleged “that it was standard in the entertainment industry for ideas to be pitched with the expectation of compensation in the event of use.”  USA Network later came out with the show Royal Pains, a show “in which a doctor, after being expelled from the medical community for treating patients who could not pay, became a concierge doctor to the rich and famous in the Hamptons” – the precise thematic treatment alleged by plaintiff that it had disclosed 4 years earlier.

The problem these cases have is that if the claim essentially sounds in copyright, it must only be brought in Federal Court (and the copyright must be registered to do so) – and worse, copyrights do not protect ideas, only the expression of them.  So, to avoid this preemption effect of copyright law, the plaintiff must plead an “extra element” – and in all of these cases, that extra element is contract (a contract requires proof of an offer, acceptance, consideration, and legality – none of those elements are required to establish copyright infringement).   This court held that “As long as the elements of a contract are properly pleaded, there is no difference for preemption purposes between an express contract and an implied-in-fact contract.”  Hence, the claim survived another day.

We advise our clients to be as express as possible when making pitches, even if in the applicable industry, it is “standard practice” to respect the notion of payment if the idea is used.

For more information contact Mike Oliver.