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.

When someone steals an idea, however, obviously no contract has been negotiated and no payment made. Still, California courts can “find” a contract – an “implied contract” — even where one doesn’t physically exist, and a court can demand that payment be made pursuant to that implied contract. However, for California courts to do this, it must be apparent that “the plaintiff…disclosed the work to the [potential buyer] for sale, and did so under circumstances from which it could be concluded that the [potential buyer] voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work.” In other words, the pitch must occur in a business setting where the person pitching is clearly trying to sell the idea to the listener, and where both sides know payment will be required if the idea is eventually used by the listener.

So let’s say I’m playing golf with a Netflix executive. I’m standing on the beautiful fifteenth fairway of the Riviera Country Club when, just as my playing partner is about to swing, I blurt out an idea for a new Netflix series. What if the executive subsequently uses my idea without paying me? Answer: I’m out of luck, because there’s no implied contract here; blurting out an unsolicited idea on the fifteenth fairway hardly sets up the expectation that the listener will have to pay for what was communicated. If it did, I could blurt out ideas all day long and put listeners in a terrible legal bind.

No, the circumstances of the pitch must demonstrate that the listener – the producer, director, studio executive or whomever — is obviously expected to pay for the idea if he uses it. Therefore, California courts have usually required that:

• Before someone submits an idea, that person must clearly condition the disclosure on the listener’s agreement to pay for the idea if the listener uses it;

• The listener must know or should know the conditions on which the disclose is being made before it’s made;

• The listener must voluntarily accept the submission on the idea conveyor’s terms and thereby impliedly agree to pay the idea conveyor.

Some California courts have said that a specific request for money up front is not necessary – that the business circumstances alone surrounding the pitch can be used to prove that both parties knew payment would be required if the idea was subsequently used. Being invited into a producer’s business office to pitch an idea would be evidence of such a business circumstance.

Be aware that not all states follow California’s rule, so knowledge of your state’s law is essential if you want to best protect your ideas. And be aware of this as well: To prevail on an implied contract claim, one must not only prove that both parties understood payment was expected, but one must also prove that the listener actually used the idea. Since so many ideas circulating in Hollywood are so similar, it’s never easy to prove it was your idea that gave birth to a subsequent project. The producer can always argue he developed the idea from another source.

Facts

James Cameron wrote and directed Titanic, a blockbuster movie based on a historical fact: the sinking of the great ocean liner Titanic. Does this mean no one can now make a movie about the disaster because the event itself has been copyrighted?

Section 102 of the Copyright Act is silent on whether facts are copyrightable. The courts, however, have been clear: Facts cannot be copyrighted. Facts are free for anyone to use, just like ideas. If someone could copyright facts, our society’s ability to discuss and test important issues in the so-called market place of ideas would be drastically curtailed, which would surely run afoul of the First Amendment’s free speech guarantees.

Therefore, you can’t prevent others from writing about or dramatizing a fact simply because you did so first. For example, Steven Spielberg directed Lincoln from a screenplay by Tony Kushner. The film dramatized the last few months of President Lincoln’s life and his push to get the 13th Amendment passed by Congress. Does the film prevent someone else from making a movie about the last months of Lincoln’s life or his desire to pass the 13th Amendment? The answer is no. Nor does Titanic prevent others from making a movie about the Titanic’s demise.

What the authors of historical or biographical movies can prevent, however, is someone copying their expression of the facts. While both Lincoln and Titanic are based on and dramatize historical fact, both films are replete with invented dialogue and scenes, suppositions based on fact, and the occasional inclusion of fictional characters. Movies are not documentaries and so films based on real people and actual events usually take “artistic license” to make the storytelling more interesting. These storytelling inventions generally constitute the author’s expression of the historical facts, and it is this expression that copyright law protects. So, write about the Titanic if you wish, but just don’t include what James Cameron specifically invented; don’t have a poor young man who wins a trip on the Titanic by winning a poker game, who stands at the bow of the ship and yells “I’m king of the world,” and who falls in love with a rich young women who’s trapped in a loveless relationship who we meet at the beginning of the story when she’s an old woman.

Titles

You can’t copyright a title to a book, movie, song, television show or video game. Titles simply don’t have sufficient expression to be worthy of copyright protection. So don’t bother registering your title with the United States Copyright Office, and don’t think you have a copyright lawsuit if someone rips off your title.

Characters

Movies, television shows and new media stories are usually told through the eyes of fictional characters. We know a movie, television show, or new media work can be a copyrighted, but what about the fictional characters? Can a fictional character be copyrighted separate and apart from the stories that include them? For example, Ian Fleming created the character of James Bond, a cool, fearless British spy equally adept with a gun and a quip, a man licensed to kill bad guys who likes his martinis shaken not stirred and who all women find amazingly irresistible.

Is the character of James Bond by itself copyrightable, or only the stories incorporating the character? If the character can’t be copyrighted, then anyone can use “James Bond” in their film, TV show or used car commercial.

Once again, Section 102 is silent on this issue. Unfortunately, in this case, court decisions are slightly more muddled. What court cases do demonstrate, however, is that fictional characters can transcend the mere “idea” of a character, such as the “crusty but benign boss” or a “femme fatale,” or “nerdy guy” or “British spy,” and become the “expression” of a character. Where a fictional character makes the leap from mere idea to expression, then that character can be copyrighted.

One of the important early cases examining this issue, Warner Brothers Pictures v. Columbia Broadcasting System, cast real doubt about whether or not a fictional character can ever be copyrighted. In that case the court said, “It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.” So, according to this court, unless a character and the story itself are one-in-the-same (which arguably is very rare), the character cannot be copyrighted.

Twenty-four years later, however, the same court ruled differently when the characters in question were Mickey Mouse and some of his Disney cartoon friends. In Walt Disney Productions v. Air Pirates, Mickey, Minnie, Goofy and others Disney cartoon characters were, without Disney’s permission, depicted in an underground comic book taking drugs, engaging in debauched sex, and generally behaving in ways that don’t happen in the world of Disney…ever. So, Walt Disney Productions sued, claiming its cartoon characters were each protected by copyright and that those copyrights had been violated. Here, the court noted its previous ruling that characters created to serve a story are not entitled to copyright, but then said, “When the author can add a visual image, however, the difficulty is reduced…Put another way, while many literary characters may embody little more than an unprotected idea…a comic book character, which has physical as well as conceptual qualities, is more likely to contain some unique elements of expression.”

So a cartoon or animated character, which has a precise physical appearance along with various anthropomorphic qualities, can transcend the “idea” of a character and become the “expression” of a character.

But can’t a non-animated fictional character also be sufficiently detailed to transcend the idea of a character and become copyrightable expression? Doesn’t the character of, say, James Bond transcend the broad “idea” of a suave British spy and become the protectable “expression” of a suave British spy? While it’s impossible to predict what courts will do in all instances, I think it’s likely many courts would now say a detailed, specific fictional character can be protected by copyright.

For example, in Burroughs v. MGM, the question was whether Tarzan, the fictional “ape-man” character created by author Edgar Rice Burroughs and depicted in many films, could be copyrighted. The court ruled that it could, saying:

…characters that are well-delineated in the Tarzan works of Edgar Rice Burroughs are protected from infringement by the copyright in the work itself…The only issue remaining is whether any of the characters…were sufficiently delineated by the author to be copyrightable. It is beyond cavil that the character “Tarzan” is delineated in a sufficiently distinctive fashion to be copyrightable…Tarzan is the ape-man. He is an individual closely in tune with his jungle environment, able to communicate with animals yet able to experience human emotions. He is athletic, innocent, youthful, gentle and strong. He is Tarzan.

In Metro Goldwyn Meyer v. American Honda Co., a court found that the character of James Bond is a “well delineated” character and thus protected by copyright.xli Other courts have found that Rocky Balboa from the Rocky movies and the character of Godzilla are sufficiently well delineated to be copyrightable.