Contracts can Limit Ability to Use Otherwise Freely Available Facts or Ideas

Here in Tinsel Town, I regularly read about lawsuits where the plaintiff claims that his or her screenplay was revealed to someone who turned it into a hit film or show without consent or payment.  Just as regularly, I read that the case ended in judgment for the defense, as the judge granted a motion finding insufficient similarity between the plaintiff’s writing and the film or show.

These rulings are often grounded in a distinction in the law that copyright only protects original expressions but not ideas.  In other words, one cannot copyright the general idea of a mild-mannered person who doubles as a superhero with prodigious powers, but copyright law will protect the writings and images in “Superman” comics and stories.  A related notion is that the copyright law only protects expressions with at least minimal originality, and will not protect “scenes a faire,” elements that are necessary or obvious to express a particular idea.  For example, in a story about crime in the city, a montage of traffic choked streets, teeming sidewalks and a beat cop watching the scene may be necessary or obvious elements given the premise.

When evaluating whether two works are sufficiently similar so as to raise an inference of unauthorized copying, and thus let the case go to a jury, judges use a process known as “analytic dissection,” where judges comb unprotected elements out of a work, leaving only protected expressions, and then analyze similarities between protected expressions.  This line can be hard to draw.  Judge Learned hand wrote of the boundary between idea and expression: “Nobody has ever been able to fix that boundary, and nobody ever can.”

To me, analytic dissection can be overused to strip just about any work down to unprotected elements.  One could argue that all of the stories that exist in the world were written once the bible was complete, and since then we have been repackaging the same stories in creative ways.  No one owns the ideas of love, bravery, treachery, valor or intrigue, but we should be able to protect original combinations of words and phrases that tell age old stories in interesting new ways.

Because this area of copyright law is so fraught with peril, and arguably subjective, practitioners sometimes avoid copyright theories in favor of claims based upon contract of confidence.  Parties can always agree not to use ideas without compensation, or agree to keep them in confidence and not reveal them without permission, whether the ideas would have been protectable under copyright law.  The seminal case in this area is Desny v. Wilder, where a film idea was disclosed to the late film producer Billy Wilder, with agreement that the disclosing party would be paid if the ideas were used.

The idea/agreement distinction was pivotal in Benay v. Warner Bros., involving the contention that a screenplay was copied to make the film “The Last Samurai.”  The trial court judge and court of appeal agreed, using the “analytic dissection” method, that there was too little similarity between protected expressions to justify letting the copyright claim go to trial.  However, the appellate court confirmed that when evaluating the claim that the defendant had agreed to pay for use of the plaintiff’s screenplay, that agreement was not limited to those portions of the screenplay protected by copyright.

A similar problem exists with “life stories” or “biopics.”  I don’t think people own publicly available facts about their own life.  Thus, someone could freely use known facts about a person to make an “unauthorized” biopic.  There is the risk of a claim for defamation, but the claimant would have to show that the biopic contained known falsehoods.  There are rights against invasion of privacy, but if the biopic was based on known facts and not illegal snooping, that claim would fail.  Finally, we all have rights of publicity, or rights to control name and likeness, but generally courts have said that the First Amended trumps publicity rights where they are used to tell a story, as opposed to advertise.

Parties can always make a contract to produce a life story, in which case their ability to act is limited by the terms of the agreement.  Such an agreement would have the advantage of avoiding claims based on defamation or rights of privacy or publicity.  An agreement could also provide otherwise unavailable access to interview the subject of the life story and review letters or other private information.

These were the theories employed in a lawsuit recently filed by retired boxer Chuck Wepner, who was supposedly the inspiration for the Rocky Balboa character.  Wepner alleges that he entered into a contract with certain parties to produce his life story, to which he revealed information not publicly available.  Wepner claims that certain parties to the agreement used confidential information he revealed to make an unauthorized Wepner story without honoring the agreement.

Ideas and life stories are hard to protect in court.  Wrapping the right to use ideas and information into a contract can provide protections in court that would otherwise be unavailable.