Protecting your ideas

It shouldn’t happen but it does and we’ve all heard the stories. The producer, whose development pitch is rejected by a broadcaster, discovers 12 months later that the commissioner has set up his own production company and is developing a project suspiciously like the one she pitched. The company looking for co-production finance finds out that its former co-production partner is hawking its treatment round financiers following the break-down of negotiations.

As a media lawyer, I’ve heard more of these stories than most and the question I am most frequently asked over a soggy bruschetta at media gatherings is ‘How can I stop someone else ripping off my idea?’

The short and truthful answer is you can’t. It’s a business risk which you can’t eliminate entirely. However, you can manage and reduce the risk by a combination of practical and legal measures.

The main difficulty in protecting ideas against copying and misuse is that there is no copyright in an idea. The law of copyright in England and Wales protects only certain categories of ‘works’ which have been recorded in some form rather than the ideas embodied in the work. A treatment may be protected by copyright as a literary work but this only gives the owner of it the exclusive rights to copy and exploit that particular literary work and prevent others from doing so. If another writer comes along and independently creates a new treatment based on the idea contained in the original treatment there will be no infringement of copyright.

So if your idea isn’t protected by copyright what legal protection do you have if someone walks off with it? In this situation your idea may be protected under principles of common law or equity which have evolved over time through decisions of the courts. Broadly, the law provides protection for confidential information which has been disclosed to third parties where two conditions are satisfied. The information must be inherently of a confidential nature and it must have been disclosed, expressly or impliedly, in confidence.

In the context of ideas and treatments for films there will generally be no problem with satisfying the first condition but in order to avoid any argument as to whether or not information was imparted to a third party in confidence it is best to ensure that, wherever possible, a confidentiality or non-disclosure agreement is signed before the idea is disclosed. As well as putting beyond doubt the fact that the relevant idea was disclosed in confidence, a confidentiality agreement creates a contractual obligation of confidence which, if breached, will give rise to an action for breach of contract.

How then, in practical terms, should you go about protecting your ideas?  I suggest the following:

1.  Make sure all ideas, treatments and outlines are recorded in writing and marked with an appropriate copyright notice in the form © [Name] [year]. All rights reserved. While the copyright notice isn’t essential for copyright protection in England and Wales and won’t serve to confer copyright protection on the idea embodied in the relevant treatment or outline, it does convey the message that you are serious about protecting your intellectual property.

2.  Where the circumstances and your bargaining position allow, ensure that all third parties sign a confidentiality agreement before you disclose your idea to them.  Realistically, major financiers and broadcasters are not going to sign confidentiality agreements prior to receiving submissions (and may indeed ask you to sign a submission agreement). This is understandable when you consider the number of submissions they receive and the risk that they will subconsciously copy an idea or develop an idea which, although original in the mind of its creator, is strikingly similar to another idea which may have been submitted and rejected. But when you can insist on it, a confidentiality agreement not only protects your legal position in the case of unauthorised disclosure of your idea but concentrates the mind of the person asked to sign it and demonstrates your professionalism in managing your intellectual capital.

3.  Above all, take care that ideas, treatments and outlines are not disclosed more widely than is necessary to seek development interest/finance. It is far better to prevent confidential information from coming into the hands of third parties in the first place than to rely on legal remedies for its misuse!

Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Pamela previously worked for 16 years as an in-house lawyer at S4C where she gained extensive experience in film and television financing, production and distribution. Pamela contributes regularly to media and legal journals and is noted in Chambers Directory 2011 as a media and entertainment law expert.  

Disclaimer:  The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular situation or agreement.

Copyright © Forte Law 2010.  All rights reserved.