Understanding Copyright Law: Pitches, Facts, Characters and the Ambiguities of Section 102

Gregory Bernstein’s book Understanding the Business of Entertainment, the Legal and Business Essentials All Filmmakers Should Know, published this week, discusses such important topics for filmmakers as copyright law, First Amendment law, the FCC, the growth of media conglomerates, studio development and distribution, entertainment contracts, as well as a section for independent filmmakers.

The following excerpt comes from the chapter about copyright law. Among many other things, the chapter discusses how story ideas cannot  be copyrighted. The excerpt below, however, discusses one way filmmakers and other creative people can nevertheless protect ideas from being stolen, and whether facts, characters and titles may be copyrighted. 

Protecting Ideas via Contract Law

Say you’re a game designer and you think you have a wonderful idea for a new video game. Now let’s say you don’t want to write a lengthy treatment of your idea; in other words, you don’t want to take the time to write something sufficiently detailed and expressive to deserve copyright protection. Say, instead, you just want to orally describe, or “pitch,” your idea to a company to try and generate interest. Since pitches are spoken and thus not fixed in a tangible medium of expression (unless you record your pitch or write it down word for word), pitches themselves can’t be copyrighted. And, because pitches are usually very brief, even if you did write one down it may not be sufficiently expressive to be considered a literary work of authorship and thus copyrightable.

Still, pitches take place everyday in the entertainment industry. The truth is, if you (or in the world of Hollywood, your agent) have a solid relationship with a potential business partner, say a producer or motion picture studio, the likelihood of someone stealing your idea is low. But it does happen occasionally. So what do you do – how can you protect your ideas when you pitch them?

In California, where most pitches take place, courts have ruled that where you reveal an idea to a potential business partner, your idea can be protected, not by federal copyright law, but by California’s state law of “implied contract.”

As you know, contracts describe the specific terms of an agreement bargained by two or more parties. Normally, if I go into a studio and pitch an idea to a producer, and the producer wants to develop the idea into a movie, a contract will be written describing the terms of our bargain: I will get money to write the idea into a screenplay, and the producer will get a script she thinks can be made into a movie…

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