Idea Misappropriation

Idea Misappropriation: A Vehicle Of Relief For Authors by Keino D. Campbell, Esq.

Almost every author at some point in time has been concerned with the concept of idea misappropriation. Most publishers or agents will require an Author either verbally or in writing to pitch their idea or concept for a book or script to determine its commercial viability and this is when idea misappropriation occurs. Unfortunately, idea misappropriation occurs on a regular basis in the publishing and film industries. Idea misappropriation is a court created concept that will allow an author who pitches an idea or story to bring a claim for relief if their idea is appropriated or used without permission. Until recently, there have been no real definitive elements used by the courts that will allow authors the ability to effectively pursue an idea misappropriation claim.

One of the most famous idea misappropriation cases involved Eddie Murphy and the movie "Coming to America." In 1992, columnist Art Buchwald and producer Alain Berheim were awarded almost a million dollars when a judge ruled that they were not compensated by Paramount for their screenplay work on Murphy's 1988 hit film

Idea misappropriation and copyright infringement are different concepts with their own elements of proof. Copyright law protects an author's particular expression of an idea, not the idea itself. Copyright law does not generally protect against ideas, facts, material traceable to timeless themes, basic plots, settings, basic concepts, and stereotypical characters. For example, one cannot copyright the basic plot of the "Indiana Jones" movies (the clever adventurer that hunts for lost treasures) because that is material traceable to a timeless theme. It can be a very difficult concept to differentiate between a protected idea and a protected expression. To prove copyright infringement the plaintiff must prove that the defendant actually copied protected material and meeting the substantial similarity test.

With idea misappropriation the concern and protection sought is for story idea theft, which copyright law does not protect. Idea misappropriation can be based on an oral or written contract. In the majority of cases there is never a written contract protecting a persons ideas and thus this area or law primarily relies on implied contracts. An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by law, as a matter of reason and justice from their acts or conduct. It is an agreement that legitimately can be inferred from intention of parties as evidenced by circumstances and ordinary course of dealing and common understanding. When an author submits a proposal to an agent or publisher, there is usually an implied understanding that this information is not free and clear for use or misappropriation. The author is sending the information with the understanding that the publisher will in good faith not misappropriate the author's idea. If the publisher decides to use the story idea or have another author use the story idea, without permission, the court gives the author an avenue for recovering from the misappropriation.

The required elements of proof for an idea misappropriation case are; (1) is the story idea original; (2) did the author actually submit the idea (oral or written); (3) was the idea understood to be for sale; (4) was the idea misappropriated; (5) are the any actual damages. These required elements of proof vary from jurisdiction and some courts may have additional elements of proof. Expert witnesses are key to proving this type of case as these individuals list the similarities and dissimilarities of the works. Jury selection is also very key in these types of cases as these cases usually come down to the perceptions of the jury. Idea misappropriation cases are expensive so the author should be relatively sure that he/she could meet the required elements of proof in their jurisdiction.

One of the most famous idea misappropriation cases involved Eddie Murphy and the movie Coming to America. In 1992, columnist Art Buchwald and producer Alain Berheim were awarded almost a million dollars when a judge ruled that they were not compensated by Paramount for their screenplay work on Murphy's 1988 hit film, Coming to America. Art Buchwald was also granted an original story credit. The Court found that Paramount misappropriated the story ideas detailed in the Plaintiff's script and the Plaintiff should have been compensated. Eddie Murphy was also recently sued for misappropriating a story idea form a screenplay similar to the movie Nutty Professor. In both of those cases there was a paper trail, which eased the Plaintiff's ability to show that there was idea misappropriation.

Here are a few tips that authors can use to protect their ideas and also be able to present sufficient evidence for an idea misappropriation case:

1. Establish a confidentiality agreements/arrangements with agents;
2. Send information by certified mail or better FedEx;
3. Create a paper trail and record of who information is sent to;
4. Send a self serving confirmation letter or memorandum;
5. Document an idea by copyright or poor man's copyright;
6. Register your work with an appropriate organization (WGA);
7. Inform in submission that proposal is an offer to make a deal;
8. Get an opinion from a publishing attorney.

This article is not intended as legal advice; please seek the services of a competent attorney to assist you with any legal matter.

Related Links

Pros and Cons of Mainstream and Self-Publishing by C. Liegh McInnis

Copyright: Here is how you protect your art!


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I was raised in Detroit Michigan, married for 9 years with two children (4 and 2). I received a double bachelor from Florida State in Psychology and Legal Communication. I attended Howard University School of Law and I am a proud alumnus of the university. I have been practicing entertainment law for four years and I specialize in contract negotiation, design, education, and formation. I litigate in the areas of contract and copyright law. The majority of my entertainment practice centers on the area of publishing and music. I am also a noted business attorney and I represent a diverse body of business practices, which aids in my entertainment practice. 

The Campbell Firm concentrates in the representation of small businesses, authors, singers, rappers, entertainers, production/record companies, contract negotiation, defamation, copyright, trademark, contract litigation, film and television, publishers, actors, comedians, songwriters, artists, general litigation, personal injury, and mediation/arbitration. 

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Keino D. Campbell, Esq.

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