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Development: The Screenplay

The producing process starts with the seed of an idea: a concept borne of the producer’s mind, pitched to the producer by a third party, or triggered by an outside stimulus, such as a writer’s pitch, pre-existing literary property (novel, play, news story, etc.), or life story. Whether you need legal counsel and/or must stop to acquire rights prior to developing the idea into a screenplay depends on how the idea came to be made known to you and how it is that you are going to develop it into a screenplay.

Screenplays Based Upon Pitches

As you know based on the above discussion, copyright law protects the expression of an idea, but not the idea itself. As a consequence thereof, a third party who “blurts out” an idea to you in an informal setting (a party, restaurant, elevator, parking lot, etc.) without asking for your permission to do so, has given you the equivalent of a gift. You can go ahead and use the unsolicited idea without compensation or credit to the third party. However, just to be safe, consult with legal counsel prior to developing any idea that comes to you in this manner.

Implied-in-Fact Agreements

Though copyright law does not extend to the protection of ideas, contract law does in limited circumstances. An idea pitched to you in a manner and setting from which it is inferred that the third party is pitching for the purpose of selling the idea creates an “implied-in-fact contract” between the third party and you. For example, a third party, such as a writer, schedules a meeting to pitch you his idea for an action motion picture. The third-party has your permission to pitch the idea since you would not have scheduled the appointment otherwise. Furthermore, though it may be unspoken, you know that the third party is pitching the idea to you for the purpose of selling it. You have to pay the third party for use of the idea under these circumstances. If you already have a similar or the same idea in development, it is best that you disclose that during the pitch meeting and that you follow up the meeting with an email reiterating this fact. You might ask writers and others who want to pitch to you to submit loglines prior to scheduling meetings; this way you can avoid taking pitches for ideas you already have in development.

You have to pay the third party who pitches an idea based on public domain material if an implied-in-fact contract is formed. The reason for this is that the idea came to you via the third party and the implied-in-fact contract presupposes that you will pay. Richard and Elizabeth Burton learned this lesson the hard way when they produced “The Taming of the Shew.” Julian Blaustein pitched the idea to their agent, who assured Blaustein that the Burtons had not previously considered the play. The Burtons produced a motion picture based on Blaustein’s idea without compensating or crediting him for it. Blaustein prevailed in a lawsuit against the Burtons for breach of an implied-in-fact contract.8

Oral Agreements

Ideas are also protected via oral agreements. Where an implied contract is inferred, an oral agreement is not. The parties have to actually “agree” in order for an oral agreement to be binding. In the case of an oral agreement, a producer pitching to you may say something like, “I’m here to pitch you my idea for an action motion picture with the understanding that you will pay me a producing fee and will allocate me a ‘producer’ credit if you use it.” You are bound by the terms of oral agreement if you agree to them and, indeed, use the producer’s idea.

I advise my clients who pitch to follow up meetings with an email whereby they confirm the purpose and subject of the pitch meeting. Additionally, I have my clients restate the oral agreement in the follow-up email if one was formed. If you receive such an email and it inaccurately depicts the circumstances, be sure to respond immediately to that extent, so that your silence is not misconstrued as agreement. Note that normally oral agreements are binding for matters that can be concluded in a year’s time. Since the implied-in-fact contract may influence the outcome, it is best to assume that the oral contract is binding regardless of the time frame, unless your attorney advises otherwise.

Original Screenplay by the Producer

There are no legal issues to consider if you are writing by yourself and the screenplay is completely original to you. By “original” I mean that the idea for, and content of the screenplay, is unique to you. It was not pitched to you by a third party, is not based on a pre-existing literary work (book, magazine article, play, motion picture or television series, etc.) or the life of a person living or dead. You may go ahead and write the screenplay without the need for legal counsel if you are writing a completely original screenplay.

Screenplays Based Upon Pre-Existing Pictures and TV Series

I have been contacted a multitude of times over the years by producers who wanted to acquire the right to develop a screenplay based on a pre-existing motion picture or TV series owned by a major or mini-major studio, television network, or cable company. The response from the owners is always a resounding, “no.” The owners of these pre-existing works are not interested in putting their library assets in an outside party’s hands unless that party is someone with whom they want to work as a major actor or director. I have had clients approach me after they developed the screenplay, thinking the original owner would agree once they read their brilliant work. The owners of these pre-existing works do not want to consider your ideas or any derivative work created by you that is based on their pre-existing work. They do not want to risk you filing a copyright infringement, unjust enrichment, and/or breach of implied contract lawsuit against them when they produce a remake or sequel that contains elements that were in your submitted screenplay. This happened to MGM and Sylvester Stallone when a writer submitted his version of “Rocky IV” to them. MGM and Sylvester Stallone prevailed over the writer because the “Rocky” characters were entitled to copyright protection. Also, note that you might be exposing yourself to a copyright infringement lawsuit when you create a derivative work without the owner’s permission to do so. Destroy and do not pitch or submit any screenplay or teleplay you have developed that is based on pre-existing filmed content.