Big Time 9th Circuit En Banc Ruling in Copyright Case!

The Daily Appellate Report from Thursday, May 5, 2011, included a new decision by the 9th Circuit Court of Appeals, as follows:

Montz v. Pilgrim Films & Television Inc., US Court of Appeals - Ninth Circuit, No. 08 56954, May 4, 2011 (hereinafter, Montz).

In Montz, the en banc panel ruled that Copyright law does not preempt an implied-in-fact contract claim where the plaintiff alleged a bilateral expectation that he would be compensated for use of his idea.

Screenwriters can sigh a breath of relief that the 9th Circuit recognizes and endorses that California case law recognizes such contracts. Indeed, the 9th Circuit in this opinion stated, "The California Courts of Appeal have uniformly concluded that Desny claims are not preempted because they flow from agreements and understandings different from the monopoly protection of copyright law."

The Desny opinion refers to the first case in California where in the California Supreme Court "recognized that a writer and producer form an implied contract under circumstances where both understand that the writer is disclosing his idea on the condition that he will be compensated if it is used." Desny v. Wilder, 299 P.2d 257 (Cal. 1956). The 9th Circuit also recognized that the Desny claim has "remained viable under California law for over fifty years."

The court in Muntz also stated, "Plaintiffs' complaint specifically alleged that defendants breached an implied-in-fact contract. The complaint described the terms of the agreement: Plaintiffs communicated their ideas and creative concepts for the "Ghost Hunters" Concept to the Defendants, pursuant to the standard custom and practice in the industry with respect to the exchange of creative ideas, under the following terms:

a. that Plaintiffs' disclosure of their ideas and concepts was strictly confidential;

b. that the Defendants would not disclose, divulge or exploit the Plaintiffs' ideas and concepts without compensation and without obtaining the Plaintiffs' consent; and

c. that, by accepting the Plaintiffs' disclosure of its concept, the Defendants accepted and agreed to abide by the foregoing terms.

In terms of preemption, the court stated that "To survive preemption, a state cause of action must assert rights that are qualitatively different from the rights protected by copyright." Because Copyright Law does not protect "ideas", an implied-in-fact contract that protects the communication of an idea is qualitatively different from the rights protected by Copyright. A person's rights to his ideas are thus beyond those protected by the Copyright Act.

Good News for writers. Not so good news for idea thieves.

*** *** ***

Respectfully submitted,

William E. Maguire, Esq.
Los Angeles, California
www.TrademarkEsq.com

*** *** *** *** ***