Plagiarism of Creative Works

Courts in Los Angeles are frequently confronted with claims that an entertainment company has plagiarized a writer’s work. The word “plagiarize” means to use and pass off as one’s own the ideas or expressions of another. The legal rules that govern the dispute, the court in which the dispute will be fought and the success of the case will likely depend on whether the plaintiff claims that “ideas” on the one hand, or “expressions” on the other, were plagiarized.

When one writes a treatment or full teleplay or screenplay – technically, when that work is fixed in a tangible medium, such as on paper or saved on a drive – the copyright law protects unauthorized copying of the expressions in that work, but does not prevent independent creation of similar expressions. The author gains important additional rights, notably the ability to claim statutory damages and attorneys’ fees, if s/he registers the work with the US Copyright Office prior to any claimed infringement. If an author feels that his or her work was copied in a show or film, s/he could sue for copyright infringement in federal court, which has exclusive jurisdiction over copyright claims.

A copyright plaintiff faces daunting hurdles. S/he must prove that the company had access to the allegedly stolen work and that substantially similarities between the works suggest copying and tends to undercut the defense of independent creation. To show “access,” a federal judge will usually require proof that the plaintiff actually presented his or her work to someone involved in creating the allegedly infringing work. Speculation that a rejected submission was in reality read and copied will not suffice. The requisite “similarity” must be between the actual expressions in the two works – copying of the words — and not the mere ideas, characters or themes underpinning the works. Lack of satisfying proof of access and copying of actual expressions are often fatal to copyright claims in federal court. See Benay v. Warner Bros. (summary judgment granted to Warner Bros. on claim of copyright infringement of screenplay for “Last Samurai”) A party who brings a copyright claim and loses may be required to pay the defendants’ attorneys’ fees.

As an alternative to a copyright claim in federal court, a writer who submits ideas to a person or company in a position to produce a work based upon the ideas, under circumstances where the recipient expressly or impliedly agreed to pay if the ideas are used, may have claims in state court for breach of contract and confidence, sometimes called “idea submission” claims. These claims differ from copyright. Most importantly, whereas the copyright law only protects expressions, contract and confidence claims may rest on a promise to pay for use of ideas. Thus, if a writer feels that his or her ideas were used but the expressions in the submitted work were not copied, an idea submission claim in state court may be the best, or only, remedy. Second, while a copyright claim may be brought against any party who copies, displays or distributes an infringing work without permission, an implied contract or confidence claim may be brought only against the parties with whom the agreement was made. Third, an idea submission plaintiff will have some flexibility in fashioning a damage claim based upon factors such as lost fees for use of the ideas, injury to loss of credit and the value of the use of the idea to the defendant. Attorneys’ fees, however, are not available to the prevailing party.

Anyone who believes that their work has been used by an entertainment company would be well advised to consult counsel experienced in navigating the perils in this field.