Ninth Circuit Holds that Script Ideas and Concepts Protected by Implied Contract

Ideas and concepts for movies and television shows are not protectable under copyright law.  So if you approach a movie director with a script for the next summer blockbuster and the director takes the ideas and concepts from your script, but passes on the script itself, copyright law will not help you.  The best way to protect yourself is with a written confidentiality/non-disclosure agreement.  But what if you have nothing in writing?

This was the situation analyzed by the Court in Montz v. Pilgrim Films.

In that case, Plaintiff Larry Montz, a parapsychologist who came up with an idea in 1981 for a television show about people like him conducting pseudo-scientific investigations at real-world locations.  Apparently twenty years later he was still pitching the idea with no takers.  At least two of the networks he pitched the idea to were NBC and the SyFy channel.

Then in October 2004 SyFy premiered “Ghost Hunters.” In 2006 Montz sued for copyright infringement, breach of an implied contract, and breach of confidence.  Not surprisingly Montz lost on his claim for copyright infringement — SyFy did not use any of his actual scripts or footage.  Montz’s claim for breach of contract and breach of confidence were also dismissed.  Montz appealed.

On appeal, a three judge Ninth Circuit Panel held that Montz’s claims for breach of contract and breach of confidence were preempted by Federal Copyright law.  Montz appealed again to the full Ninth Circuit which heard the appeal en banc.

Before the entire Ninth Circuit, the ruling was reversed.  The court held that that breach of an implied contract and breach of confidence claims were not preempted by the Copyright Act.  The court stated,


We again hold that copyright law does not preempt a contract claim where plaintiff alleges a bilateral expectation that he would be compensated for use of the idea, the essential element of a Desny claim that separates it from preempted claims for the use of copyrighted material. We see no meaningful difference between the conditioning of use on payment in Grosso and conditioning use in this case on the granting of a partnership interest in the proceeds of the production. Montz, as did the plaintiffs in Desny and Grosso, has alleged he revealed his concept to defendants reasonably expecting to be compensated, if his concept was used. We conclude that the district court’s judgment dismissing the contractual claim as preempted must be reversed.

. . .

Plaintiffs’ claim for breach of confidence also survives copyright preemption. The claim protects the duty of trust or confidential relationship between the parties, an extra element that makes it qualitatively different from a copyright claim.

The dissent argued that “an action to enforce a promise not to use or to disclose ideas embodied in copyrighted material without authorization asserts rights equivalent to those protected by the Copyright Act.” However, this argument seems to entirely miss the point that ideas are not protected by Copyright law.

The only place for the defendants to appeal at this point is to the United States Supreme Court.  Otherwise this case will be remanded to the District Court where the case will either proceed to trial on Plaintiff’s breach of implied contract and breach of trust claims, or (more likely) be settled by the parties.