It seems that just about everyone who has ever watched television has an idea for a television program, and anyone who has sat in the dark in a movie theater with a bucket of popcorn has an idea for a script. Despite the number of would-be filmmakers, novel ideas are few and far between. This makes idea submission an arena ripe for breach of contract claims, with conflict and claims of stolen ideas as predictable as most plots.
Those seeking guidance from courts on whether they have an actionable claim regarding an idea submission often assert that the applicable standards seem ephemeral. However, a close look at case law reveals a relatively straightforward test and guidelines for potential plaintiffs to consider. Moreover, while no bright-line rule has emerged to apply in every situation, there are two basic questions that must be answered affirmatively if a plaintiff wants to succeed in an idea submission case:
1) After considering the level of similarity between the plaintiff's idea and the defendant's work, is it fair for the plaintiff to receive some compensation for performing the service of disclosing his or her idea?
2) If the plaintiff should be compensated, is it fair for the defendant to be the person or entity required to do the compensating?
Central to whether an actionable breach of contract claim exists are two issues. First is the similarity between the two works--that is, whether a comparison of the works reveals enough similarity that the plaintiff is entitled to recovery. Second is whether the plaintiff's idea in fact has some value--an issue that encompasses access and independent creation. If the defendant did not have access to the plaintiff's work or independently created his or her own work, the defendant will prevail in an idea submission case.1
Not every set of two seemingly similar works will be deemed sufficient to establish a cause of action. Indeed, an examination of California case law over the last 50 years reveals a "substantial similarity" test in idea submission cases.2 Even where the court does not use the phrase "substantial similarity," it is clear that the standard was still being employed. In applying this test, courts compare the plots, themes, characters, storytelling techniques, and gimmicks of the subject works to determine whether they are similar enough to warrant a breach of contract claim. And contrary to many plaintiffs' assertions, the substantial similarity test, as applied by the courts, requires a high threshold of proof that the similarity is indeed substantial.
Weitzenkorn and Its Progeny
The substantial similarity test was first advanced by the California Supreme Court in 1953 in Weitzenkorn v. Lesser. Although plaintiffs commonly cite Weitzenkorn for the notion that only a very low standard of similarity is required to support a claim,3 they are misinterpreting the court's analysis in that case.
Plaintiff Ilse Lahn Weitzenkorn wrote a literary composition titled "Tarzan in the Land of Eternal Youth" about the already famous Tarzan character. Weitzenkorn alleged that she entered into an express oral agreement with the producer defendants entitling her to compensation if the producers used "all or any part of" her composition.4 The defendants produced a motion picture titled Tarzan's Magic Fountain, which was also about Tarzan and eternal youth, but did not compensate Weitzenkorn.
Weitzenkorn brought causes of action for breach of express and implied contract. In evaluating whether a demurrer to Weitzenkorn's complaint should be overruled, the supreme court considered "whether there is substantial similarity between [the two works]." Without substantial similarity, "as a matter of law" the plaintiff's complaint could not survive a demurrer.5
The court decided to overrule the demurrer, holding that "similarity may exist because of the combination of characters, locale, and myth." Indeed, a portion of the basic dramatic core of the works "might be found similar," including the characters of Tarzan, Jane, and Cheta appearing in an African locale within the context of a mythical fountain of eternal youth.
Although the court stated that it was applying a substantial similarity test, it noted that if the defendants agreed to pay Weitzenkorn for the use of "any part" of her work, an even lower standard of similarity may be required. Though dubious that the defendants had made such a broad agreement with the plaintiff, the court permitted the claim to survive demurrer because of the possible existence of supporting evidence.6
Less than two months after the Weitzenkorn decision, the California Court of Appeal applied the substantial similarity standard in Sutton v. Walt Disney Productions. The court explained that to state a cause of action for breach of contract on an idea submission theory, the plaintiff must "demonstrate a substantial similarity between her ideas as embodied in her [work]" and the defendants' work.7 After reviewing the two works, the court held that they were not substantially similar and affirmed dismissal of the plaintiff's case on demurrer. The court reasoned that a single, general instance of similarity between two works--in Sutton, both works were about animals--was not sufficient to state a claim.8
An idea submission case was again before the California Supreme Court approximately three years later. Victor Desny, the plaintiff in Desny v. Wilder,9 submitted a well-developed synopsis of the life and death of Floyd Collins to defendant Paramount Pictures Corporation. He then claimed that the defendants used his synopsis in the creation of a motion picture but failed to pay him for the use of his property. In permitting the case to proceed past summary judgment on a breach of contract theory, the supreme court did not articulate any particular standard of similarity that was required for the plaintiff to recover. However, after considering the two works in great detail, the court simply stated that the defendant's work "closely parallel[ed]" and "closely resemble[d]" the plaintiff's work.10
When the California Court of Appeal granted the plaintiffs a new trial on their idea submission case in Donahue v. Ziv Television Programs, Inc.--10 years following the Desny decision--the court found a high degree of similarity between the two works in dispute.11 The plaintiffs had created a television series titled The Underwater Legion. They alleged that they entered into a contract with defendant Ziv Television Programs, Inc. in which Ziv agreed to pay the plaintiffs if it used their work. Subsequently, Ziv created a program called Sea Hunt that was arguably based on The Underwater Legion but did not compensate the plaintiffs, who sued for damages.
At trial, the jury found for the plaintiffs, but the court granted Ziv's motion for judgment notwithstanding the verdict and for a new trial. The court of appeal reversed the judgment notwithstanding the verdict but affirmed the order granting a new trial.
Without announcing a bright-line standard, the court of appeal based its reversal of the judgment notwithstanding the verdict on the high degree of similarity between the works. In particular, it stated a jury could find the format of each work "quite similar" to the other--indeed, according to the court, "[t]he list of differences is shorter than that of the similarities." The court further noted a strong similarity in the "basic dramatic core[s]" of the works, their use of "various types of equipment for operating under water," and their extensive use of underwater photography. In addition, "[s]imilarities in basic theme and dramatic situations" could be found, as well as similarities in "basic plot ideas, themes, sequences and dramatic 'gimmicks.'" Indeed, the court explained that the defendant's work followed the plaintiffs' "format in most of its important facets."12
The court of appeal again applied a high degree of similarity standard two years later when considering, and quickly dismissing, an idea submission case. In Henried v. Four Star Television, plaintiff Paul Henried alleged that the defendant breached a contract to pay him for using his work, which consisted of a seven-page synopsis for a television series.13 In determining whether the plaintiff had a viable cause of action for breach of contract, the court compared the two works in order to determine whether there was "a substantial or material similarity between plaintiff's material and defendant's series." After examining the plots, characters, motivations, subject matter, and milieu of the two works, the court found a lack of substantial similarity.14 As a result, the court upheld dismissal of the case on demurrer. The court noted that while both works contained heroes who traveled in a chauffeur-driven Rolls-Royce, this fact seemed "grossly inadequate to sustain a claim of substantial or material similarity."15
Four days after the Henried decision, the court of appeal decided Minniear v. Tors. Despite the prior cases finding that a high threshold for similarity is required for idea submission cases, plaintiffs frequently cite them, along with Minniear, for the proposition that a low threshold of similarity will suffice.16 Indeed, plaintiffs sometimes claim that, according to Minniear, as long as their work is the "inspiration for" the defendant's work, they have sufficiently stated a cause of action for breach of contract to pay for use of their work. However, this assertion misinterprets case law. In fact, Minniear did not articulate a low standard at all.
The court of appeal held that plaintiff Harold Minniear had presented sufficient evidence at trial regarding the similarity of his underwater adventure television series to the defendant's series to overcome a motion for nonsuit. Although the court used the words "inspiration for" in its opinion, it once again focused on the high level of similarity between the two works in deciding to permit the plaintiff's case to survive. Indeed, the court dissected the two works and found that there were "enough similarities in the basic plot ideas, themes, sequences and dramatic 'gimmicks'" for the jury to infer that the plaintiff's work was in fact used by the defendants.17 The court noted that both works were "based on an underwater adventure format involving an ex-Navy frogman named Mike, using scuba and special underwater equipment. In each work, the heroes operated their own boat on a commission for dangerous underwater work. Attractive young girls were featured in both works." Moreover, both works featured a character named Mike Gilbert and contained similar jet pilot incidents.
The court of appeal applied the substantial similarity test in the 1970 case of Fink v. Goodson-Todman Enterprises, Ltd.18 Plaintiff Harry Fink created a presentation for a proposed television series titled The Coward, which he alleged the defendants used without compensation to Fink in developing the television series Branded. The court compared the two works, found a high degree of similarity between them, and held that Fink had stated causes of action for breach of express contract and breach of implied contract, among others.
Explaining that it was looking for the most feasible way "to look for substantial similarity" between two works, the Fink court considered the plot, themes, and storytelling techniques of the works.19 The plots and basic themes of the two works were "strikingly similar," if not entirely "the same." In both stories:
1) The hero is a young military officer who takes command upon the infirmity of his superior.
2) Men in the hero's military unit are killed after he assumes command, which leads to a court martial and internal turmoil for the hero.
3) The main character is on a mission and carries a physical reminder of that mission.
4) The main character has a Scottish name.
In addition to these similarities in plot and theme, the techniques of portrayal and other storytelling devices, such as dream sequences, were alike as well. The numerous similarities of the two works were deemed sufficient to withstand demurrer.
In 1982, the court of appeal reiterated the high standard for similarity in Mann v. Columbia Pictures, Inc.,20 an implied contract case. The court stated, without discussion, that an instruction directing the jury to consider whether "the defendants based [their work] substantially upon [the] plaintiff's ideas" was correct.21
In the famous Buchwald v. Paramount Pictures Corporation case, the plaintiffs succeeded in proving to the superior court that the defendants had breached a contract with the plaintiffs in making the motion picture Coming to America.22 Although the court considered whether the defendants' motion picture "was inspired by" the plaintiffs' work, it expressly stated that it based its determination on the quantitative and qualitative points of similarity--as identified in Fink--between the works.23
The court found "compelling evidence of similarity between [the works]," in the abstract and in the details. Both were modern-day comedies in which the protagonist is a young black member of royalty from a fictional African kingdom. Both protagonists are extremely wealthy and well educated and, in both stories, the protagonist comes to a large city on the American East Coast. Both stories contained "fish out of water" and "love triumphs over all" themes. Moreover, both main characters find themselves without their royal trappings, experience the realities of "ghetto life," and are enriched by these experiences. Each protagonist falls in love with a young American woman whom he marries and makes his queen in the mythical African kingdom. Also, each main character is employed by a fast food restaurant. In both works the protagonist foils a robbery attempt by using a mop. Each work was to star Eddie Murphy, who eventually took the lead in the defendants' motion picture, and each work was to be directed by John Landis, who ultimately directed the defendants' work.
This year, in an unpublished opinion, the California Court of Appeal, in upholding the dismissal of an idea submission claim in Reginald v. New Line Cinema Corporation, affirmed the high level of proof required by the substantial similarity test.24 The plaintiff, Rex Reginald, claimed that the 2005 blockbuster motion picture Wedding Crashers was based on his submission of material titled "Party Crashers Handbook" to New Line Cinema prior to the development of the motion picture. The trial court dismissed Reginald's claims on summary judgment on the ground that his submission was not substantially similar to the motion picture. On appeal, Reginald argued that California courts have not applied a consistent standard to the idea submission analysis. The court of appeal rejected this argument.
The appellate court affirmed the trial court's dismissal of the case as a matter of law. The court of appeal independently compared the works and held that summary judgment was properly granted because there was no substantial similarity between the plaintiff's concept and Wedding Crashers. It did so by employing a standard for idea submission cases involving a claim of a breach of implied contract:
Where...there is no direct evidence showing that a defendant used a plaintiff's idea, the plaintiff must show that the defendant's work is substantially similar to plaintiff's idea in order to raise an inference that the defendant used plaintiff's idea....While there may be no precise formula established by law,...the degree of similarity required to meet the substantial similarity test is high in the idea submission context....[T]he points of comparison used in determining similarities are material features of the works, not merely words and phrases or the same basic idea.25
Ultimately, the court of appeal rejected Reginald's identification of 14 alleged similarities between the works as a matter of law. In doing so, the court stated that the alleged similarities did "not play a material role in the specific elements of the works at issue, such as characters, character motivation, settings, basic dramatic core and themes, storylines, plot ideas, the dramatic sequence, and dramatic gimmicks."26
So case law dating back 50 years confirms that plaintiffs must establish a substantial similarity between their work and the defendant's work to be successful in an express or implied contract idea submission claim. Clearly the courts look to several factors in determining whether the requisite level of similarity has been met:
1) A similar combination or sequence of elements.
2) Similar characters, settings, dramatic cores, and plots.
3) Similar formats.
4) Similarities in theme or subject matter.
5) Similar gimmicks.
6) Similar storytelling techniques.
7) Similar portrayal elements (such as identical casting).
Ultimately, the considerations in idea submission cases are largely identical to the elements considered in the extrinsic test for copyright infringement--namely plot, theme, dialogue, mood, setting, pace, characters, and sequence of events.
Altering the Required Degree of Similarity
Although substantial similarity is the benchmark in idea submission cases, the necessary degree of similarity may be heightened or lessened depending on the factual circumstances of the case. These circumstances may include the language used by the parties in making their agreement, which may alter the level of similarity required to show a later breach in contract.
In Weitzenkorn, for example, the California Supreme Court explained repeatedly that the language of the parties' agreement may require a different standard of similarity to be applied.27 Underlying the court's opinion was its reasoning that producers and writers are free to make any contract they desire--and set any standard they want--regarding the buying of ideas. Indeed, the Weitzenkorn court stated that however "improbable" it may be, the plaintiff might be able to show that the defendants agreed to pay her "no matter how slight or commonplace the portion which they used."28 Courts of appeal and the Los Angeles Superior Court have followed Weitzenkorn by stating that the terms of the contract--that is, what the parties actually agreed to--will be controlling.29
Accordingly, contracting parties can modify the level of similarity required to trigger an obligation to pay for use of the work. As in Weitzenkorn, a person presenting an original work may seek an agreement requiring compensation for the use of even the slightest element of his or her work. On the other hand, production companies may negotiate arrangements in which they only need to compensate parties when they use unchanged significant portions of the work, including the exact plot, theme, characters, and settings. Theoretically, the contracting parties could agree that only a "striking similarity" (a standard with a higher level of proof than substantial similarity) will suffice to trigger a producer's obligation to compensate the plaintiff. Producers can also protect themselves by making it clear during negotiations that absent an express written agreement to the contrary, the producer does not agree to pay for the use of general ideas or nonoriginal elements of the work.
Although access to the original work is often at issue in copyright infringement cases, it is questionable whether the degree of access is influential in an idea submission case. Under the "inverse ratio rule," less similarity may be required when a defendant has been granted unfettered access to the work. As the California Supreme Court stated in Golding v. R.K.O. Pictures, Inc., "Where there is strong evidence of access, less proof of similarity may suffice. Conversely, if the evidence of access is uncertain, strong proof of similarity should be shown before the inference of copying may be indulged."30 Citing Golding, lower courts have stated that less similarity is required when the defendant had "unlimited access" to the plaintiff's work or the evidence of access is "overwhelming."31 However, the Golding court also explained that "[p]roof of access, however, establishes no more than the opportunity to copy and not actual copying....Any liability for damages must rest upon substantial evidence of similarity between" the two works.32
Since access to the original work is often undisputed, idea submission cases typically hinge on whether the new work is sufficiently similar to what was submitted. Indeed, according to Nimmer on Copyright, "even massive evidence of access cannot by itself avoid the necessity of also proving the full measure of substantial similarity."33 However, in Funky Films, Inc. v. Time Warner Entertainment Company, L.P., the Ninth Circuit implied that the inverse ratio rule has stronger applicability in cases in which the defendant expressly has conceded access to the plaintiff's work.34
To the extent the rule applies and can alter the requisite degree of similarity, courts have provided virtually no guidance regarding how much the rule can affect the required level of similarity in a given case. The question of how much or how little the inverse ratio rule can affect the applicable standard remains unanswered.
Development of the Initial Idea
Another factor that plays a role in idea submissions claims is the degree to which the initial idea was developed. For example, if a person simply suggests that a producer "make a comedy this year," must that person be compensated if the producer later produces a comedic work within the year?35 The answer is most likely no. But how much more detailed must the idea be? It is unclear whether suggestions that a reality show be developed around the concept of a singing competition or remaking a film provide sufficient basis for a claim. Unfortunately, there is little guidance on this topic.
Notably, the Desny court left open the possibility that an idea transmitted by a plaintiff to a defendant may be valueless--and thus not the proper subject of a contract. The court explained that only "some ideas are of value to a producer" and that other ideas "may be considered totally devoid of...any practical value."36 The court's opinion emphasizes that those who convey valuable ideas may seek to recover on breach of contract grounds.37
Moreover, the court of appeal in Chandler v. Roach has held that an idea must have "sufficient concreteness so as not to be too vague to be consideration for a contract."38 To the extent that the plaintiff has mislead the producer about the value of his or her idea, gross inadequacy of consideration may be relevant to a claim of fraud.39
The line to be drawn between what is vague and what is valuable is difficult to discern. Some very general ideas can, in fact, support a claim. In Fink, for example, the court noted that a "mere basic theme" may be an idea that can support a contract-based claim.40 Moreover, the Chandler court noted that there is no requirement of either novelty or concreteness for an idea to be the subject of a contract41--a statement directly at odds with its opinion that an idea needs to have "sufficient concreteness" to constitute consideration. In addition, the timing of the disclosure of the idea may make the idea valuable. In particular, an idea "may be valuable to the person to whom it is disclosed simply because the disclosure takes place at the right time."42 Finally, the person who conceives an idea may elucidate the value of its disclosure through testimony at trial.43
Several basic contract principles also suggest that very general ideas may be the subject of a contract-based claim. The terms of a contract will be controlling,44 so if the defendant actually agreed to pay for a general idea, it is unlikely that the courts will interfere to protect the defendant from its own decision. Indeed, an underlying principle of contract law is that "one who promises to pay a fee in exchange for services will be held to his promise, regardless of the value of the services, and even though they may be valueless in fact."45 Moreover, as many plaintiffs have argued, courts ordinarily do not question the adequacy of consideration in contract cases.46
However, these principles belie the fact that no court has ever held that a general, minimal idea may support a contract claim. For example, in Desny, the plaintiff's idea was a well-developed storyline set forth in a four-page synopsis.47 In Fink, the plaintiff's idea was presented in a detailed plot summary for a television series, along with a pilot script.48 In Donahue, the plaintiff's idea was delineated in 12 story outlines, one screenplay, and a proposed budget.49 In Minniear, the plaintiff's idea took the form of a script and a booklet that outlined prospective episodes.50 In Buchwald, the plaintiff's idea consisted of at least a three-page treatment.51 In Weitzenkorn, the plaintiff's idea comprised a composition with an extensive storyline.52
The case most routinely cited for the proposition that a general idea may support a contract claim is Blaustein v. Burton.53 However, the plaintiff's concept for the transformation of a Shakespearean play into a motion picture was in fact well detailed. Indeed, among other things, the plaintiff proposed to create a motion picture out of the play The Taming of the Shrew starring Elizabeth Taylor and Richard Burton and directed by Franco Zeffirelli. The plaintiff proposed to remove the "play within a play" device found in the original play and to include the enactment of two scenes that occur off-stage in the play. The plaintiff also proposed to film the movie in Italy. Considering these proposals and the fact that the resulting movie included each of these elements, the Blaustein court concluded that the plaintiff's idea was one that might be protected by contract.54
California case law elucidates that a substantial similarity standard is applied in breach of contract claims arising in idea submission cases. A high degree of similarity between the plaintiff's and the defendant's works is required in order to support a breach of contract claim. In determining whether the standard has been satisfied, courts will analyze the works and look for similarities regarding plot, theme, dialogue, mood, setting, pace, characters, sequence of events, gimmicks, storytelling devices, portrayal techniques, and combinations of these factors.
Courts will also look to the language of the parties' contract to decide whether the parties have agreed to apply a higher or lower standard of similarity in a given case. Less clear, however, is the effect, if any, of the inverse ratio rule. The law remains unsettled regarding when the inverse ratio rule applies and, if it does, whether it alters the level of similarity that is required to trigger a defendant's obligation to pay in an idea submission case.
Also uncertain is the extent to which an idea must be developed before it can be the subject of a contract claim. Lawyers on both sides of the table could give more definitive advice to their clients if clearer guidelines existed. However, because no case has yet to affirm the existence of a contract based on a general, ill-defined idea, it is best to conclude that an idea requires more certainty if it is to form the basis of a contract.