Implied contracts

[NoNeckJoe]

So I wrote a fictionalized story dealing with an actual event, and now face the prospect of submitting the script. I realize how infrequently people actually get ripped off, so normally I wouldn't worry about it, but this is not an original script. It's based on a true story that was covered by the media and later served as the basis for a few books. My main character is fictional, but the circumstances detailed in the script are factual. I realize I can only copyright my expression of the story, not the underlying events.

Here's the question: Let's say I submit the script to an as-yet-unestablished producer. The producer likes the script and asks for a shopping agreement (i.e. free option). I decline his offer. Am I then protected from him farming the idea out to someone else or pitching the idea since there is an implied contract between us once I've submitted the script to him (the impled contract being that he won't pursue the idea if we don't come to an agreement)? If the producer asked me to sign a rather vague release form stipulating that he is released from any and all copyright, contract or tort claims, would that potentially nullify this implied contract?

I know the obvious answer to this question is to retain an entertainment attorney, but for the moment I'm just seeking the input of the battle-tested vets on this board. Thanks for any thoughts you people might have.

[jkk808]

That's not an implied contract.

[Ivylilly]

In principle, there is nothing you can do to prevent him from pitching the premise to someone else and have them wright a whole new script. You can sue him later and try to prove that he ripped you off. However, it takes time to write a brand new script. If the producer is not established he probably won't be able to sell it on a pitch. So by the time his script is done, yours could be long set up...

[Bess McNeil]

One approach might be to try to secure the'life rights' to the real person whom the story is about. I'm not sure how you go about this, I've never done it myself, but I once was hired on a project where the producers had bought these type of rights from the main character in the story.

Other than that, you're really not protected in any way. If this is based a real life story, and the rights haven't been secured anyone could latch onto it. I once pitched a story to a tv show that featured real life historical figures in fictionalized settings. I didn't get the gig, but the producer hired one of their in house writers to write a script featuring the historical figure I'd suggested. Not a thing I could do about it.

[NoNeckJoe]

jkk808: Actually there IS an implied contract, but only for my version of the story. If somebody wants to start from scratch, apparently I have no recourse.

Ivylilly: Guess I need to work on getting my own version set up as quickly as possible.

Bess McNeil: Unfortunately my protagonist is fictional, so there's no one to secure the rights from. At least I have the script written, so I have a jumpstart on someone who wants to turn it around and pitch the idea themselves.

Thanks for responding.

[bottomlesscup]

jkk808: Actually there IS an implied contract, but only for my version of the story. If somebody wants to start from scratch, apparently I have no recourse.


To use an old joke - your implied contract isn't worth the paper it's written on.

And yes, you have no recourse if someone starts from scratch. Isn't that what you did?

[jkk808]

Actually there IS an implied contract, but only for my version of the story.

Um, no, that's not true.

What prevents him from taking your story is the copyright protection your screenplay has, not some elaborate, imaginary implied contract you've constructed.

In order to have a contract, even an implied contract, there needs to be some meeting of the minds, which is not evident in your scenario.

[JoeNYC]

There was a similar situation where a writer called Billy Wider's office and Wilder was busy and told his secretary to write down the writer's pitch over the phone and he'll look at it later.

It was a fictionalized story based on a true event. It was the Kurt Douglas movie where he played a reporter, covering a guy trapped in a pit or something like that.

Billy liked the pitch but cut the writer who pitched it out and proceeded with his own people.

The writer sued and won because the judge said there was an implied contract. The writer would've never pitched it without the implied consideration that he would be compensated if used.

[LaTaGu]

person pitching an idea to a producer is doing so on the basis that they get paid if the producer uses the idea. I don't know if CA has the same law.

But, the fact is, you want a non-disclosure agreement in any case where there's a threat that you're sharing ideas that can be exploited without technically exploiting your copyrighte in the expresion of that idea. (This applies to all ideas that fall short of copyright or patent protection, like business plans or treatments or one paragraph pitches.)

Two people can agree to just about anything, and you can agree with a producer that he won't make ANY movie remotely related to your idea even if that movie doesn't violate your copyright.

Your problem is obviously that there's an underlying work that is not copyrightable and anyone who likes the general idea but not your writing can turn around a find another writer for the same idea (if your idea was original and they liked it, they'd play it safe and buy your script and hire someone to adapt it).

I don't know the Wilder details, but I'd be surprised if a plaintiff would have won that case if the underlying story was in the public domain (or if Wilder didn't copy some very unique twist on an idea in the public domain). The NY case that established the implied contract principle was a game show idea for a game show producer. That's a bit different from your situation.

The best thing to do is to make sure that you have producers sign confidentiality agreements. Tell them beforehand that your idea is based on a story in the public domain, so you'll need to have them agree that they won't compete with your idea.

Talk to a lawyer and make sure you get a contract that is phrased correctly.

[JoeNYC]

LaTaGu says, "I don't know the Wilder details, but I'd be surprised if a plaintiff would have won that case if the underlying story was in the public domain..."

Details:

The year, 1949. The case, Desny v. Wilder. Desny, the writer, telephoned Billy Wilder's office on the Paramount lot and asked to speak to Billy. The secretary asked the reason. The writer told her he had a story based on boy named Floyd Collins who was trapped in a cave and was covered by news outlets for weeks in the 1920s.

When the secretary learned it was 65 pages long, she told him she would have to get it put in synopsis form. The writer told her he'd like to shorten it down himself and he'll call back.

The writer called back two days later and read her a three page outline that she took down in shorthand. She told the writer she'd discuss it with Wilder.

The writer later learned that Paramount made the movie without compensating him, so he sued.

According to Mark Litwak, an entertainment attorney who analyzed this case, said the court was faced with these following questions:

Could the writer sue for theft of a story based on a true story in the public domain?

Did it matter that the writer never directly spoke or met with Wilder or any Paramount executives?

Could there have been an implied contract between the parties?

In the end, the appellate court agreed with the writer.

The court stated that literary property can be created out of historical events in the public domain. Paramount had the right to go back to the historical record and prepare it's own story, but if Paramount used the writer's research and work, there may have been an implied agreement between the parties to compensate the writer.

The writer didn't sue for copyright infringement because his story was largely a true historical incident in the public domain, so he sued for breach of contract. The secretary was considered an agent of Wilder and Paramount who had the authority to accept stories for her employer.

Mark Litwak says the best way for a writer to be protected is to get a signed agreement, but he knows it may be awkward for a writer, who had a hard time getting in the door to meet with a powerful producer to start by requesting the producer sign a written agreement, thereby maybe offending the producer or getting him worried about liability and want to consult with their lawyer.

Mark advises a writer to at least enter into an oral agreement and have a witness with you, such as an agent, co-writer, etc. The writer then proceeds to begin the meeting by saying, "Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation." If the producer nods okay, or says yes, then there's a deal.

This is what Mark advises but I bet most writers will still be afraid of offending the producer and not give this spiel, hoping the producer will be ethical and compensate the writer if they use their idea. I know I don't think I could bring this up. I would just give my pitch.

Mark also mentions that what if a producer decides not to go forward with your pitch but mentions it to another producer at a party, and then that producer uses it.

Mark advises to be protected from this happening is to say to the producer who you're pitching: "I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission."

If the producer nods okay, or says yes, you have a deal, and you can sue if the producer breaches this oral agreement.

[Augie Kestrel]

By the way, NoNeck, jkk808 is a lawyer. :)

[BannedFromTheBoard2]

It was the Kurt Douglas movie where he played a reporter, covering a guy trapped in a pit or something like that.

The movie.... Ace In The Hole.

No neck, you could still acquire the (life)rights to the story even if you choose not to use the actual person in the story. It would give you, well, more rights.

Also, write a short treatment or outline and register it with the Library of Congress. At least you'll get the protection that the Library affords you for your expression. Do that before you pitch it.

A pitch is easier to purloin and get away with than a 20 page treatment.

[LaTaGu]

"Paramount had the right to go back to the historical record and prepare it's own story, but if Paramount used the writer's research and work, there may have been an implied agreement between the parties to compensate the writer."

Wilder must have used elements that were unique to the synopsis.

And it looks like CA has similar law to NY. If you tell a producer an idea for a production, there's an implied contract (that the producer will pay you if they use the idea that you own).

Still, if you want to prevent someone from making a film based on stories in the public domain, the only way you can protect yourself is with a confidentiality/non-compete agreement.

[LaTaGu]

based on facts in the public domain.

It would only stop the subject from cooperating with anyone else, or from selling rights in autobiography to anyone else.

A written biography is NOT in the public domain. If a producer wanted to make a story about someone based substantially on an already published biography, the producer would have to acquire the copyright in and the biography (notwithstanding the life story rights).

But the existence of a published biography doesn't stop a person from making an unauthorized biography. You just would have to be careful not to base your story on the biography.

At least that's my understanding.