You have an idea, story, treatment or screenplay for a film, television show or commercial that you would like to submit to a production company hoping to interest the company in producing a movie based on your work. You may also wish to submit your material to an agent for the agent to represent you. This article shows you how to approach production companies or agents with your script or screenplay idea, and how to protect your work from being stolen from you during the submission process and subsequently, monetize it.
Pitching Unsolicited Material
Production companies and many agents have serious concerns in accepting unsolicited material. A company’s receipt of unsolicited screenplays or ideas may expose it to liability, such as litigation for copyright infringement, breach of a confidential relationship or breach of an express or implied contract, especially if it should turn out that the production company (or a client of the agent) develops a similar project.
For these reasons, production companies will usually refuse to accept unsolicited (and even solicited) material unless it is represented by an agent or entertainment attorney. Even when material is accepted, either directly or through an agent (or attorney), production companies (and many agents) will insist that you sign a written submission release before you submit your script, treatment or idea to them.
A submission release establishes the nature of the property being submitted and specifies certain identifying elements of the material, including the title, the form in which it is submitted, the names of the principal characters, and a brief summary of the story.
A submission release provides certain protections for the production company or agent, such as waiving any claims regarding the existence of a fiduciary or confidential relationship between you and production company or agent, or any implied promises or duties on the part of the production company or agent.
From the viewpoint of the production company, it wants a submission release with sweeping language in order to protect itself from potential claims. On the other hand, the extreme scope of the submission release should be a deterrent to you for fear that your script or idea will be stolen and used without just compensation.
Obviously, you should have an entertainment attorney review the submission release so you may understand what you’re signing and determine if the submission release is a one-sided agreement or is unfair.
Right to the Idea
A submission release will require that you represent and warrant that you own the idea or the screenplay and you have all rights to make the submission. Therefore, before you submit your idea or script, you should confirm that you either wrote, optioned, purchased or commissioned it as a work-for-hire, and that disclosure will not violate obligations to a third party.
If more than one writer owns the material, the production company will usually require all parties to sign the submission release.
A submission release should only release production company (or agent) for any use of the unprotected ideas in your submission, that is, those elements of your screenplay or idea that are not protected by copyright law. The production company does not want to be subjected to a breach of contract claim based on the theory that the mere submission of material created an implied obligation of payment if any part of the material is used by the production company, even if the material used is otherwise unprotectable.
A submission release also relieves the production company of any obligation to pay you for any idea the production company independently developed or created or that it received from a third source. Since the principal focus of a copyright infringement action is proof of access and substantial similarity, the production company must preserve its right to use material it derived or obtained from its own development efforts or from other sources.
Copyright law only protects expression of ideas, not the ideas themselves. An idea is protectable if it contains your own original material, it constitutes more than an idea or concept, and is not in the public domain or derived from news or facts. The more developed your story and/or characters, the more they are copyrightable.
You can register your script with the Writers Guild of America (WGA) and with the U.S. Copyright Office. However, copyright registration is not required to establish rights under U.S. Copyright Law. Copyright protection extends to original works of authorship that are fixed in a tangible medium. Therefore, you may have protectable rights without copyright registration.
Obligation to Pay for the Protected Ideas
A submission release should state that the production company will pay you a fair market value if it uses your protected ideas, that is, any portion of your screenplay that is protected by copyright.
A submission release may attempt to limit the liability of a production company or agent. For example, such submission release may state that if you should prevail in a dispute with the production company or agent, your remedy is limited to either WGA minimum scale or a certain fixed amount, such as $31,000.
Stay clear of submission releases which provide, for example, that production company will not compensate you in anyway or that you have no expectation of receiving any compensation. You should never agree to a submission release that says that you will never sue a production company if it steals your script.
If there is a dispute about the amount of compensation for any material that is used, or any other dispute arising in connection with the material, the submission release may provide that such dispute be submitted to binding arbitration and that you waive the right to litigate in court.
You should make every effort to negotiate out of an arbitration clause. Arbitration is more expensive to file than litigation, it is definitely not less time consuming, and certain arbitrators may be biased in favor of a studio or television network, so they can be provided more work.
A submission release may also contain a provision which provides certain time periods for resolution of any dispute with the production company. For example, if any claim arises in connection with the production company’s use of your material you must give the production company 90 days notice, and the production company has 30 days to cure after receipt of such notice. This procedure may be a condition precedent to your ability to proceed with arbitration or litigation. It is very important for you to understand that this shortened time period is a contractual modification of the applicable statute of limitations for bringing a claim. A production company will seek to include such a provision because any failure to give timely notice is a waiver of your claim.
Establishing a Claim
The two main bases for establishing a claim against a production company are copyright infringement and breach of contract.
1. Copyright Infringement:
The principal focus of a copyright infringement action is proof of access and substantial similarity between the protected elements of your work and comparable elements of the production company’s allegedly infringing work.
There must be “substantial similarity” between your expression of ideas and production company’s production to render it liable for copyright infringement. You must prove similarities of treatment, details, scenes, events, and characterization.
To defeat a plagiarism or copyright infringement claim, the substantial similarities between the two works must be proven to be the work of coincidence. As to the coincidence, access becomes important.
Under U.S. Copyright Law, any accidental similarity assumes a low degree of probability the work was the product of independent thought and imagination. Therefore, where the production company had access to your copyrighted work, this will be used as circumstantial evidence of copyright infringement. For example, In JORDAN-BENEL v. Universal City Studios, Inc., the plaintiff alleged that defendants infringed his copyright in a screenplay, Settler’s Day, by using his screenplay idea to create the film, The Purge, without providing him compensation as a writer. According to the plaintiff, the defendants had access, in that, the plaintiff’s manager submitted Settler’s Day to UTA agents, who represented The Purge screenwriter.
On the other hand, if there’s no evidence of access, for there to be a finding of violation of copyright, the similarities would have to be so striking that it is impossible that the two works could have been created independently of the other.
2. Breach of Implied Contract:
There are 5 things you should know about implied contracts. They are:
(i) An implied-in-fact contract is created where you submit a screenplay idea (the offer), the production company accepted it for review (the acceptance) and subsequently uses it without compensation (the breach).
Under an implied-in-fact contract, there’s an expectation that if your idea is later used, you will get something.
(ii) A company’s solicitation of script submission may constitute conduct creating an implied-in-fact contract binding the company to pay for your ideas it they are used to produce a film or other content.
(iii) The mere use of a concept or idea, which you offered for sale, with the expectation of payment, rather than the use of an entire “literary property”, is protected by contract law. Thus, you and a producer are free to contract (whether express or implied-in-fact) to agree to pay for your unprotected ideas, even though those ideas could not be protected by copyright law.
(iv) State-based contract claims for the protection of ideas are not preempted by federal copyright law if they allege an “extra element.” The “extra element” in this case is “the bilateral expectation of compensation.”
Thus, whereas other protections, such as those against plagiarism and copyright infringement, have been preempted by federal copyright law, Contract law, whether through express or implied-in-fact contracts, remain the most significant state-law protection for literary or artistic ideas.
There need not be an explicit promise of payment in order to satisfy the “extra element” test. An implied promise of payment will qualify.
It is standard practice in the entertainment industry for ideas to be pitched with the expectation of compensation in the event of use. It is even the custom for studios to agree to pay for submitted ideas whether or not those ideas are ultimately used. Thus, in the absence of evidence to the contrary, the “extra element” test will usually be satisfied.
In Forest Park Pictures v. Universal Television, the Christensens developed an idea for a television show called Housecall, and created a television series treatment (including character bios, themes and storylines), submitted, and subsequently pitched it to USA Network. USA decided to “pass” on the idea. However, less than four years later, USA produced and aired a television show with a similar concept called Royal Pains. The Christensens sued, not alleging copyright infringement, but rather a claim of breach of implied contract. The court held that “USA Network voluntarily accepted Plaintiffs’ ideas knowing full well that Plaintiffs had submitted those ideas in confidence and for economic gain, and with the clear expectation of payment in the event those ideas were utilized by USA Network.”
(v) An implied-in-fact contract may be formed where the submission was made in confidence (due to a confidential relationship or trust between the parties).
For these reasons, a production company will usually not agree to treat your solicited or unsolicited idea or screenplay as confidential, or enter into a written or oral nondisclosure agreement. This is because the existence of a confidential relationship may be a key factor in determining whether you may have a claim for compensation for breach of contract, even for your unprotected ideas.
Keeping Accurate Records
Because the circumstances concerning the submission of a screenplay idea and the receiving party’s response may be critical to establishing an implied-in-fact contract, you should maintain complete and accurate records of any communications concerning your ideas.