Holly Agnew is an associate in the Toronto law firm of McMillan Binch LLP and a member of the firm’s KNOWlaw Group. This article was prepared with the assistance of Ed Tenki, student-at-law.

Howard Aiken, inventor of the first computer, once said, ‘Don’t worry about people stealing an idea. If it’s original, you will have to ram it down their throats.’

People who think their idea for a film or television production has been stolen would probably disagree. They may be convinced their idea is so original that it’s clear the similarity between what they created and what’s on the screen has to be more than coincidence.

Even if it is, it may be hard to prove and to convince a court that you should be compensated somehow – either for copyright infringement or theft of your idea. What’s original to you may not seem original to the court.

In addition, copyright law protects only original works, not ideas. Copyright applies to only the expression of an idea – the form of the idea when it’s recorded (for example, in a song or a short story).

If your idea is expressed in some recordable form, such as a novel or feature film, you might be able to protect certain elements within it, such as dialogue, characters, descriptions or plot elements, but even these are not automatically protected under copyright law, especially if they are considered too general or commonplace.

Some recent court cases have confirmed the courts’ approach to the protection (or lack of protection) of ideas.

In one U.S. case, two baseball fans sued MasterCard for copyright infringement after it aired a series of advertisements featuring some of the same concepts as a documentary the fans had produced.

Distraught at the possibility that the Minnesota Twins Major League Baseball team would have to leave Minneapolis, the fans, David Hoch and Joseph Marble, attempted to save the city’s team by creating a short documentary to showcase the economic benefits of building a new stadium. The documentary followed them on their 10-day road trip in a red and white Volkswagen van to new stadiums in Cleveland, Baltimore and Denver.

Three years later, MasterCard created a series of advertisements featuring two friends who travel across the United States in a red and white Volkswagen van, stopping in at local baseball stadiums in cities such as Cincinnati and Boston. The message of the ads was that while they could (presumably) use MasterCard to pay for their trip, their adventures together were ‘priceless.’

Hoch and Marble’s claim of copyright infringement failed. While it was clear that they produced their film before the commercials were created, they couldn’t establish that MasterCard had access to their documentary. It wasn’t broadcast or reproduced on a commercial scale, nor was there any evidence that the tape had ever been sent to MasterCard.

Further, the court said that although the ads were similar to the documentary, the similarities weren’t considered novel enough to be protected. The concept of two friends on a road trip to baseball stadiums is a general idea, and general ideas aren’t protected by copyright.

As for the use of the red and white Volkswagen van, the court didn’t think this was enough to find MasterCard had stolen the idea for its ads from Hoch and Marble, particularly because a similar Volkswagen van was featured in the baseball film Field of Dreams.

A similar approach was taken in a Canadian lawsuit involving the movie Stargate, in which an author claimed that the idea for the movie had been taken from a novel he’d written.

MGM Distribution and the two writers credited for the film asked that the author’s claim be dismissed without a trial because his case was so weak. The court agreed.

The author’s argument hinged on the fact that both his novel and the movie featured similar elements such as a hero and a woman who is in love with him, a fight between the forces of good and evil, the presence of pyramids and sand, and the use of spaceships.

The court found that in many instances, the so-called similarities were exaggerated or distorted by the author. Even in cases where there were similar elements in the movie and the author’s novel, these were simply too general to be protected by copyright.

A hero on a mission to save the world, the presence of extraterrestrials – these are generic elements that are common to many stories. As for the landscape with pyramids and spaceships, the court doubted that one person’s description of the desert would be fundamentally different from anyone else’s.

Implied contract

There is some protection for ideas, and it doesn’t actually have to be a novel idea if you can show that it was protected by an implied contract. To do this, you must establish that:

* you made it clear your idea was being offered for sale;

* the person you talked to accepted the idea on this condition; and

* that person actually used the idea in some recognizable form.

It can be difficult to prove this, particularly if you’ve signed a submission release, which people will typically require you to sign before they’ll review a proposal or script. But sometimes it works.

Taco Bell recently found itself at the mercy of a Michigan jury after they found Taco Bell had breached an implied contract with the creators of a cartoon character named Psycho Chihuahua. After a long legal battle, the jury handed the creators – Joseph Shields and Thomas Rinks – an award of more than US$30 million.

Shields and Rinks had submitted their cartoon dog to Taco Bell at its request, but had never been paid for their work. When the talking Chihuahua appeared in advertisements for the company, Shields and Rinks claimed Taco Bell had stolen their idea. Taco Bell asserted that the idea for the Chihuahua had come from an advertising agency.

However, Taco Bell admitted that it didn’t know the contents of Shields and Rinks’ proposal before it was submitted. In other words, Shields and Rinks allowed Taco Bell to see their proposal with the understanding that their ideas were being offered for sale and Taco Bell accepted it on this basis. This was sufficient to establish an implied contract.

As these cases show, it’s possible to find some protection for ideas, but it’s not easy to do so on the basis that your idea was original. Maybe Howard Aiken had the right idea, after all.

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

-www.mcmillanbinch.com