Assuring a Happy Ending for TV Idea

How many times have you seen a television show and said to yourself: “I could have thought of that”?

Even more disturbing, have you ever seen a television show that was precisely your idea, and then when the credits rolled, you discovered that the executive producer was the guy who sat next to you in the barber shop while you explained your idea to your barber?

This will not be a lesson in how to persuade a studio executive to commit millions of dollars to produce your screenplay.

But because just about every waiter and grocery clerk I meet is “working on a script,” I thought it would be helpful to learn a little bit about the law--what there is of it--that protects ideas.

Ideas Are ‘Free as the Air’

It is not the law of copyright. Copyright law protects the form of the expression of ideas--not the ideas themselves--but the words you write to communicate the ideas. If you write a screenplay, the law of copyright may help guard against someone plagiarizing it. But if you only have an idea for a screenplay, and someone steals the idea or the plot, the copyright law is not going to help much, if at all.

In the words of former Supreme Court Justice Louis Brandeis: “The general rule of law is that the noblest of human productions--knowledge, truths ascertained, conceptions and ideas --become after voluntary communication to others, free as the air to common use.”

That applies to ideas, whether they are plots for television sitcoms or new inventions.

However, the law of contracts may, in certain limited circumstances, afford you some legal protection for your original idea.

If, for instance, you persuade a television producer to sit down and listen to your proposal, and then, next season, you see your idea or something strikingly similar to it come to life on your TV screen, you may be able to win a lawsuit for breach of contract.

A person can enter into an enforceable oral contract to purchase your idea. Even if there was no express contract, in which the producer promised to pay you a specific amount, a court may look at the context in which the idea was communicated and find that there was a contract implied in fact or law.

A judge may infer that the producer who sat down with you to listen to your proposal for a new series intended, at that time, to compensate you for your services. If your idea is both concrete and novel, and if the producer solicited the idea or you made clear that you expected to be paid for it, a court may find that an implied contract existed and order a “reasonable” payment for your services.

But if you both don’t agree on the parameters of the deal first, you may not have much of a legal claim.

“The idea man who blurts out his ideas without having first made his bargain has no one but himself to blame for the loss of his bargaining power,” the California Supreme Court once noted.

Warn the producer that you want to submit an idea and that you expect to be paid if he uses it.

“Where advance notice of an idea submission is given and the recipient permits that submission to be made, an implied contract to compensate for its use is established,” explains a legal text written by Washington lawyers Earl W. Kinter and Jack Lahr.

Opportunity to Resist

At the minimum, these lawyers say, “an idea should never be disclosed without first giving the recipient an opportunity to resist disclosure.”

Of course, many producers are loathe to read unsolicited proposals or even meet with would-be writers to discuss them. So after you send in your advance notice, you may receive a friendly but firm “we’re not interested” letter.

And even if the law is on your side, you may have a hard time proving the facts in your particular case. How can you prove that the idea you “pitched” in a one-on-one meeting is the same one that showed up on the air? It may be your word against the producer’s.

Present your idea in written form; even a one- or two-page synopsis will help later in court, although a longer summary, or “treatment,” would be better. If your work is intended for film, TV or radio, you can register it with the Writers Guild of America. Your treatment will be sealed and dated for a charge of $5 for guild members, $10 for non-members. This will help prove you had the idea before it became a show.

Another good piece of evidence would be a summary of your conversation with the producer in a follow-up letter to him. Make sure you keep a copy.

If you can afford it, a consultation with a lawyer before you see the producer would be wise. And before you decide whether you have a viable legal claim, be sure to consult a lawyer experienced in entertainment litigation.

For example, if the producer already has developed similar ideas or your idea is based on facts in the public domain, freely available to the producer, you may not be able to recover any damages.

In any event, winning a lawsuit for the wrongful appropriation of your idea is probably no more difficult than getting someone from a television production company to listen to you in the first place.

But, be warned: If you tell your barber, make sure no one is in the next chair. And be sure you trust your barber.

Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.