It has been our experience that almost all screenwriters, when given the chance, will pitch their screenplay to a studio, production company, producer, or the like without fully understanding the legal consequences of this type of disclosure. When submitting a creative work to any third party, it is not only wise - but necessary - for screenwriters and their agents to be knowledgeable about the current legal standards for protecting a creative work. Copyright protection and “idea submission” laws are constantly changing and it is hard to know for sure how and if your ideas will be protected. Take the Benay brothers for instance. They collaborated on a screenplay in the late 1990’s entitled The Last Samurai. They took the right first step and registered the copyright in their screenplay with the U.S. Copyright Office. Their agent pitched their screenplay to Bedford Falls Productions, Inc., an affiliate of Warner Bros. Entertainment, and thereby created what the brothers claim was an “implied contract.” But, as fate would have it, the studio passed on their idea – only to later release their version of a film called “The Last Samurai” starring Tom Cruise.
The Benay brothers naturally filed suit against Bedford Falls and its affiliates for copyright infringement and for theft of their idea. Recently, the 9th Circuit Court of Appeals rejected their claim of copyright infringement due to their failure to prove substantial similarity under their two-part similarity test: proof of extrinsic and intrinsic similarity. However, although the brothers lost their copyright infringement claim, they were able to convince the court that there might have been a breach of an implied contract to pay them for the use of their idea(s). In other words, the case will now be sent back to the trial court to determine if the tacit agreement made between the brothers’ agent and the folks at Bedford Falls was not honored and whether the Benays should be compensated for the use of their ideas.
Moral of the story: 1) Register your copyright with the U.S. Copyright Office; and 2) make sure your pitches to third parties are clear that your expectation is that you will be compensated if they use your ideas even if they don’t use your screenplay itself.