Sandra Richmond is a lawyer at the Toronto law firm of McMillan Binch and a member of the firm’s KNOWlaw group. This article was prepared with the assistance of Julie Beeton.

PSST. Wanna buy a hot idea?

Probably one of the most common legal claims in the film and television industry is that someone ‘stole’ an idea for a series or a motion picture from somebody else.

It’s a problem that affects people on both sides of a pitch. The ‘pitchers’ are afraid of pitching a great idea to someone only to have the other person use it to produce a show without them. ‘Pitchees’ are afraid that if they have a successful show they’ll have to deal with false accusations of stealing ideas.

If you do have, or receive, a hot idea, how do you know what makes it protectable – or not?

In Canada, ideas are not protected by copyright. Copyright law protects only the expression of an idea – the form of the idea when it is recorded (for example, in a song or a poem or a short story).

However, courts in Canada and other countries have used other legal theories to give some protection to ideas. The two most common are breach of confidence and an implied contract.

Breach of confidence

If one person discloses an idea to another person in a business context in order to encourage the second person to participate in a project, the courts may find that the idea is protected by an obligation of confidentiality.

In order to prove that there has been a breach of that obligation, you must establish that:

1. The idea has a quality of confidence.

2. The idea was communicated in such a way that an obligation of confidentiality arose.

3. There has been an unauthorized use of the idea to your detriment.

In the context of establishing whether someone breached the confidentiality of an idea for a film or television production, the first element of the ‘test’ is typically the most difficult to establish.

As to the other elements, courts have often accepted that it is industry custom to expect confidentiality when discussing ideas in the context of pitching. If you can pass the first two tests, the third one is often far more straightforward to meet.

However, to establish that your idea has a ‘quality of confidence’ that should be protected, you must show both that the idea is novel or original and that the idea is not known publicly.

The first requirement – that the idea is novel or original – is the tougher of the two requirements. It is not necessarily true that the idea must be completely different from anything that has been done before. But there must be some distinctive features. And the courts seem to suggest that the extent to which an idea has been developed may be relevant in deciding whether it merits protection.

Novel ideas

In a 1981 Australian case, a film producer prepared a written submission for a broadcaster, which set out in some detail an idea for a television series consisting of programs illustrating the lives of Australian millionaires. Each program was to provide in-depth information about how that particular millionaire had made his or her money and how it was being spent.

The producer and the broadcaster never reached an agreement about doing the series, but some time later the broadcaster aired a series that included segments about the lives of several millionaires. The publicity materials for the show included the statement that ‘Some of Australia’s biggest moneymakers spell out their recipes for success’.

The court found that the distinctive feature of the idea was that the successful millionaires themselves gave their recipes for success to the viewers, which had not been done before in Australia.

Although the idea dealt with something that was familiar, the court found that the ‘commercial twist’ or particular slant the producer gave the idea meant that it could not be treated as public knowledge.

A better idea?

It is not always enough, though, simply to take an existing idea and change some element of it.

In a recent U.S. case, the court found that the plaintiff had indeed pitched to Coca-Cola the idea of using polar bears in its advertising and that the company had thought about the idea of using those polar bears for toys, if not for commercials.

But the court also found that the idea of using bears in advertising was not novel. Another company had been using an animated bear to advertise its beverages since the 1960s. Coca-Cola had been using bears in its own advertising since 1923 and the idea for the polar bears had apparently come from the husband of an executive at an advertising agency hired by Coca-Cola.

The court said that simply presenting the bears in a different setting did not make the idea novel – creating a new or better way of doing something that already exists is not sufficient to make something ‘novel.’

Public knowledge

The requirement that an idea not be ‘publicly known’ is also critical. Obviously, the fewer people with whom you discuss your idea, the easier it will be to meet this test.

Years ago, a Canadian court found that when an idea was already known publicly, there was no quality of confidence and the idea could not be protected.

The producer of the music television series Star Chart claimed CBC had used confidential ideas and concepts in producing its own program, Good Rockin’ Tonite, a year after CBC cancelled Star Chart.

There were some similarities between the shows. Both used a ‘video jockey’ concept and some aspects of the second series (such as parts of the set) were the same as or similar to Star Chart. However, the CBC series had a longer format and included interviews and bulletins on upcoming local events.

The court found that the idea could not be considered confidential because it was already known and that the programs were essentially dissimilar in how they presented videos.

In addition, the court found that the producer of Star Chart could not establish that he suffered any detriment at the hands of CBC, because the cancellation of Star Chart was the result of a contract that had previously existed between the parties.

Degree of development

Even if your idea is novel, that may not be enough to establish originality. In the Australian millionaires case, the court said that in order to be protected, an idea must be developed to the point that it has at least ‘some attractiveness’ as a production and something that is capable of being realized as a finished project.

A later British case supported this approach, but noted that while the degree of development was relevant, not all cases would require showing that there had been extensive development.

In this case, three women, together with their composer and manager, approached a writer/producer with an idea for a television series about the members of an all-female rock group that focused both on the band and on the individual members. The writer/producer presented it to a broadcaster and the parties agreed that the group would perform in a television series if one was produced.

However, when the broadcaster eventually decided to go ahead with producing the series, one of the group members was unavailable so different performers were cast. The manager and group members successfully sued.

In this case, the court said the program concept was sufficiently novel and developed to warrant protection, and stated that an idea did not have to be in written form or in some other permanent record to be considered confidential information.

However, it warned that ‘not every stray mention of an idea by one person to another is protected.’ Ideas must be sufficiently developed to be able to become a finished production and must show that the person applied some thought and ingenuity.

Reality programs

The recent explosion of reality programming may challenge the ability of courts to find an obligation of confidentiality for novel ideas. With the production and airing of shows like Big Brother and Survivor came a handful of claims that these shows had taken their ideas from earlier television shows and, in one case, an Internet production.

It’s often easier for a court to find ‘distinctive elements’ of an idea in the context of fictional films and television programs. The courts can consider themes, plot, characters and their names, and settings. With reality programming such as cooking shows, travel shows, game shows and ‘observation’ shows, it may be more difficult to find something that is novel and distinctive to protect.

Implied contract

However, some courts have used another means of protecting ideas – the doctrine of an ‘implied contract’ – that may apply in certain circumstances.

Under this legal theory, there is no requirement that the idea must be original or novel, but in order to prove there was an implied contract you must establish that:

1. You made it clear that the idea was being offered for sale.

2. The person with whom you discussed the idea accepted the idea on this condition.

3. The person with whom you discussed the idea actually used the idea in some recognizable form.

This may be difficult to prove, particularly when most studios and broadcasters have established procedures for returning unsolicited materials and/or for having submission releases signed before proposals or scripts are reviewed.

But, if the courts are convinced that a concept deserves protection, who knows? They may come up with some interesting ideas of their own.

(THIS article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.) *