Is it Worth it to Sue for Idea Theft/Breach of implied in fact Contract?

Aleksandra Hilvert

Have you ever pitched a fantastic idea for a movie or television show just to have it taken from you? If so, you may have a cause of action for what is referred to as “idea theft”.

As entertainment lawyers who specialize in these claims, we are often approached by potential clients and asked: “What can I do if I believe someone stole my idea?”   In this article, we will address the issue of whether you have a viable claim.  While there is no “one size fits all” answer – the following are key considerations.

Idea theft is a civil cause of action to recover damages for the use of ideas that were submitted under certain circumstances.  In California, if the “pitch” (whether oral or in writing) was solicited by the party who received it (or at least “voluntarily received”), the necessary circumstances to establish an idea theft claim are found to exist as a matter of law.  The elements that give rise to such a claim are similar to a standard claim for breach of contract.  An “implied contract” is one that is formed by the conduct of the parties.  When you go to a store, it is implied that you will pay for items that you want to take home before you walk out of the store.  Similarly, idea theft claims imply that the recipient of the idea will pay for the idea if the recipient uses the idea(s).  Other elements necessary for the claim include:

  1. Elements:
    1. Submission: Was the idea pitched directly to the person who produced the show or was the person you pitched to at least involved in the production of the stolen project?  If so, then you have the required “privity” between the parties.  If not, the degrees of separation must be closely connected to establish “privity”.
    2. Substantial Similarity: It is often stated that the theft of an idea is enough to give rise to an idea theft claim but more recent California cases seem to indicate that the theft of more than one idea is necessary.  At least one case indicates that “substantial similarity”, albeit not the same substantial similarity as is required for copyright infringement cases, is necessary.   Substantial similarity is often analyzed by experts in literature or screenwriting (for entertainment-related works) and they look at everything that is “concrete” including similarities in the following categories:  plot, characters, themes, setting, mood, pace, dialogue, and sequence of events.  If you have “privity” and an objective review of the foregoing categories reveals “substantial similarities” between the two works, you may have a claim for “idea theft”.
  1. Damages: Damages for idea theft cases include the income you would have made as to the creator or producer of the show, for example, plus the damages from the lost credit had you been properly credited, and future revenue for spin-offs and derivative works.   The total damages available for idea theft claims vary from case to case and depend on several factors.  For example, if the show is successful, then the likelihood of a financial award increases.

Aside from damages, we also always make sure that the “statute of limitations” for these claims has not expired.  In California, the statute of limitations is two (2) years, usually, from the date, the stolen work is released to the public (this may include not only the actual work but marketing efforts leading up to the release date).  In New York, the statute of limitations is six (6) years.  Finally, it is important to determine where the parties (both the potential plaintiffs and the defendants) reside when making a determination about the jurisdiction of the lawsuit.  Filing idea theft cases in New York, for example, requires different elements than those in California.

So, once again, is it worth it to sue for idea theft?  The answer is  – it depends.  If the factors identified above come down in your favor, then you may have a good case.

This article is purely for informational purposes only and the Firm is not providing legal advice.  An entertainment lawyer should be consulted to carefully review and analyze the facts of your particular case.

Consult an Experienced Idea Theft Attorney

An experienced California Idea Theft attorney at Lowe & Associates can enforce your rights in your work. Contact us today for a consultation.