Screenplay Copyright Infringement Case Highlights Need for Submission Agreements

A basic tenet of copyright law is that it does not protect ideas, which is one of the lessons that two screenwriters learned the hard way in a recent case involving the Fox sitcom “New Girl.”

In Counts v. Meriweather (C.D. Ca., December 30, 2015), the screenwriters sued a production company, William Morris Entertainment (WME), and Fox, alleging “New Girl” infringed a screenplay they submitted to a former agent. While the agent was retained, the plaintiffs’ work was shopped to an agency that was eventually acquired by WME.

The court found that the first element of copyright infringement, access, was not proven because the plaintiffs established neither a credible direct nor circumstantial link between their former agent and agents for the “New Girl” screenwriters, let alone the “New Girl” screenwriters themselves. Regarding substantial similarity between “New Girl” and the plaintiffs’ work, the court found that any similarities were due to uncopyrightable ideas or scene a faire (common themes or stock story elements) which anyone is free to use under copyright law.

Is there a way for screenwriters to protect the ideas contained in their screenplays from unscrupulous producers, directors, and talent agencies? The answer is “yes” if the recipient of the screenplay agrees contractually to compensate the writer when the screenplay’s ideas are used.

In a perfect world the parties would enter into a submission agreement, containing at a minimum (1) an acknowledgement of receipt to establish access, (2) a promise to pay if the screenplay or its ideas are used, and (3) a promise to keep the screenplay and its ideas confidential unless permission to disseminate is given.

Screenwriters may also want to insist on at least an acknowledgement of receipt from each party in the chain of access to their screenplay to avoid the attenuated circumstances that scuttled the plaintiffs’ case in Counts v. Meriweather.

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