As Writers Crowdsource Jobs, Some Could Land a Lawsuit Instead

THR Crowdsource Writers Illo - THR - H 2019
Illustration by: Zohar Lazar

Every legal dust-up deserves a killer hashtag. As the war between the Writers Guild of America and big talent agencies stretches into its second month, there's now #WGAStaffingBoost, meant to help connect writers to jobs now that agents have been fired amid a dispute over TV packaging fees. Under the new regime, established writers volunteer to read material from up-and-comers, and after spotting the next Aaron Sorkin, recommend them for jobs. Such comity! Perhaps this is a revolutionary breakthrough and an existential threat to agents. In a filing to go public May 23, WME owner Endeavor listed WGA strife as a risk factor alongside Brexit and athlete clients breaking their necks.

But some attorneys are questioning whether writers should be circulating their scripts so freely, lest a fellow guild member decide to steal material. "Are there possible legal issues?" asks entertainment litigator Larry Zerner. "Of course. I once brought a lawsuit on behalf of a writer whose unpublished book had been turned almost verbatim into a television series. How did the show's 'creator' get a copy of my client's book? They were both in a writers group 20 years earlier where everyone in the group exchanged and commented on the others' work. So, I know that it can happen."

Networking has always been an important part of advancing in Hollywood. Then came a phone conversation that shaped the industry's future. In 1949, Victor Desny called the offices of Billy Wilder, then working on the Paramount lot. Desny had a "great idea" for a movie, which he wished to share with the famous director. Desny got on the phone with Wilder's secretary and described his idea — the life story of Floyd Collins, a boy who became trapped in a cave 80 feet deep. The secretary liked the idea and told Desny she'd take it to her boss for consideration. Later, after Wilder and Paramount made Ace in the Hole, a classic starring Kirk Douglas playing a disgraced journalist exploiting the story of a man trapped in a cave, Desny sued.

The Desny case established that even though copyright law protects only the expression of an idea, not the idea itself, an individual can still recover for the theft of an idea on an alternative legal claim. In short, if revealing an idea is conditioned upon a promise of payment for any later use, stealing that idea can breach an implied contract.

In the decades since Desny's fateful phone call, idea theft cases have become frequent. Stranger Things co-creators Matt and Ross Duffer nearly went to trial for allegedly stealing the idea for the Netflix sci-fi series from Charlie Kessler, who claimed to have pitched them at a film festival. That case settled in early May, as did a recent copyright suit against Conan O'Brien for allegedly lifting work from a comedian that was posted online. "The fact of the matter is that with over 321 million monthly users on Twitter, and seemingly 60 percent of them budding comedy writers, the creation of the same jokes based on the day's news is reaching staggering numbers," O'Brien lamented in announcing a settlement.

The combination of copyright lawsuits in federal court and implied contract litigation in state court have put the intellectual property business on guard. About two decades ago, studios began enacting policies against receiving unsolicited idea submissions. As a result, talent agencies increasingly have played a gatekeeper role.

But not anymore, thanks to #WGAStaffingBoost.

"It could be a 'no good deed goes unpunished' situation if the senior writer accepts the script for altruistic reasons, and then later is accused of taking expression from that same script," notes litigator David Grossman, who has handled many idea submission cases. Writers everywhere are best advised to think of ways to protect themselves. No one wishes to become John Musero, who sued in March claiming he submitted the concept for a series centered on the Department of Justice to his agents at CAA, only for a similar show called Main Justice to be sold by Jerry Bruckheimer and Sascha Penn, other CAA clients. (On May 21, attorneys for CAA argued that Musero couldn't possibly succeed on a Desny claim and that evidence shows Penn independently created Main Justice.)

"I'm sure that there will be lawsuits in the future arising from the sharing of scripts," says Zerner. "There are lawsuits now which allege infringement because the script was sent to CAA and CAA represented the writer who 'stole' the work. But that's not an argument not to have agents any more than a lawsuit that arises from this new system would be an argument against the new system."

Maybe not. But the chaos arising from an agentless world nevertheless is good for a hashtag: #WGALawyerBoost.

This story first appeared in the May 29 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.