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A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The Sting, Reservoir Dogs, Ocean’s Eleven, Now You See Me and Baby Driver that were released in between.
Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).
“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”
Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”
Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.
TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: Picard, Castle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”
Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”
Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”
The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”
The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.
Entertainment litigator Matt Kline tells industry friends and clients to consider being sued a sign you’ve succeeded. “Take Avatar,” he says. “James Cameron worked on that movie for 10 to 15 years. He had thousands of conversations about it. Everybody had a little bit of a hook to make a claim they were a part of it, but the reality is he’s a great creator. He created a great movie, and unfortunately, lots of misguided claims were made.”
When it comes to showing substantial similarity, a long-running dispute between Total Recall writer Gary L. Goldman and Disney over whether Zootopia infringed on his treatment for a project of the same name has provided one of the more memorable discussions. The studio argued that if two animated characters of different species both being small, cute, furry prey creatures was enough to render their appearance substantially similar it would upend the anthropomorphic animal market.
In part, Disney’s argument from a May 2017 motion to dismiss reads, “Judy is a rabbit; Mimi is a squirrel. Judy is shown wearing a police officer’s uniform; Mimi wears no clothing at all. Judy is a complex three-dimensional, full color, computer-animated character; Mimi is a two-dimensional hand drawing.” (Disney prevailed in the federal copyright case. A state court suit that followed is on appeal after the studio won a motion for summary judgment.)
It may seem like splitting hairs, but there’s a high bar to prove substantial similarity between works — and for good reason. “Copyright law wants more people to create more art,” says Doniger. “Someone writes a story about the plight of being an inner-city schoolteacher and, suddenly, it’s a genre. We want people to take a good idea and do different versions of it, so it enriches the tapestry of our creative expression.”
Kline reiterates that there’s a big difference between an idea and the expression of an idea. “We need the freedom of the First Amendment and free expression to tell hundreds of different stories in all genres,” he says. “If you really believe in the creative process, you don’t want to have an overly robust legal scheme that allows for lawsuits that are premised on general ideas.”
In the Peak TV era — according to FX’s annual count, in 2021 there were 559 scripted shows across streaming and linear outlets, more than double the number on the air a decade ago — it’s easy to assume these kinds of claims will become even more common. But experts consulted by THR aren’t so sure. In fact, the endless scroll of content might mean fewer suits are filed. “I’ve not seen a material increase, and it’s almost counterintuitive,” says Kline. “At the end of the day, there are more shows, but a lot of this new content isn’t making money.”
That means there’s less on the table when it comes to potential damages, while litigation is expensive and the odds here favor defendants. “Of cases that have been decided by judges in the entertainment property world, there’s a long history of them getting blown out,” Doniger says. “That may be because the strong ones with good access resolve quickly out of court.”
And the more an idea has been done, the harder it is to prove a particular work was copied. Especially when it’s common for competing projects on the same topic to be announced almost simultaneously. “There are certain ideas, stories, that are in the air that people pick up on,” says Lichter. “It’s not a matter of folks stealing copyrightable ideas. There are things that seem to be in the culture and people who are alert to the culture pick it up.”
Or, as Bernardin puts it, “The idea that you have some brilliant conceit no one has ever had is false. At the end of the day, everything is a version of a story told by a Greek dude a thousand years ago.”
Korn suggests that some legal headaches could be avoided if people were more transparent about what they have in the pipeline. “It’s pretty frequent that somebody will take a pitch and it turns out they’re already working on something that’s pretty similar to it,” he says. “There’s a moment in time where you have to decide whether to be candid about it or hold your tongue. Be honest about it and disclose it right out of the gates. ‘We have something similar. We can’t take the pitch, or we can’t discuss this further.’ If you don’t, you can end up defending yourself years later.”
A big part of his job, Doniger says, is making sure a potential client understands the law in this area and its goals. “There are a lot of things we consider to be wrong that aren’t really legally actionable,” he says. “When I decide not to take a case and I have to break it to a person that, ‘Someone very well may have taken your idea and run with it,’ most of the time they appreciate it. They understand, and they walk away with a feeling that the law is there to protect everybody, and it just kind of sucks for them.”
It may sound like a rose-colored glasses view, but the consensus seems to be that veritable, malicious idea theft doesn’t happen very often because reputable, sophisticated players in Hollywood know better than to rip someone off.
“There are just so many other projects to make, and all these companies have big legal departments who are vetting clearance issues and insurance companies saying, ‘You’re not covered if you’re doing stupid stuff,'” says Kline. “Are you going to risk the entire project because you don’t want to pay for the script? It doesn’t make economic sense.”
And, if someone does hear a pitch with potential? Notes Bernardin, “It’s cheaper to pay for the thing if you want it than it is to steal it and get sued.”
A version of this story first appeared in the Aug. 10 issue of The Hollywood Reporter magazine. Click here to subscribe.
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