You Can’t Copyright an Idea. I Know from Experience

by John Aquino on 11/27/12

Clients will ask me about protecting their “ideas,” specifically by the copyright law. The bread and butter answer is that you cannot copyright an idea. And I’ll give you an example, which happened to me.

The basic reason you cannot copyright is that copyright protects expression. Copyright protection exists the moment an original and creative artistic or literary expression is fixed in a tangible form—on paper, on film, on tape, in stone or on canvas. Until that happens, it’s just an idea in your head.

But even when you get the idea on paper, it’s the expression that is protected, not the idea. When I have taught classes in copyright I have used the example of an historian who discovers through research a Civil War battle which history has forgotten. He publishes a book. Later he hears that a movie is being made, not based on his book, but with a fictitious story set against the background of the battle. He says, “They’re trying to steal my battle!” But it’s not his battle. It is once again history’s battle. Can you imagine trying to keep track of who “owns” what idea?

The example that concerns me is that I was an expert witness and an unpaid consultant for a lawsuit involving the 2000 movie The Perfect Storm. The wife and children of the captain of the boat in which all were lost in the “perfect storm” objected to the portrayal of the captain and sued under right of publicity rather than libel since those allegedly falsely portrayed in the movie were dead and the dead cannot sue for libel. Rights of publicity statutes were designed to protect people against the unauthorized commercial use of their names and likenesses. The state statute attracted the plaintiffs’ lawyers because it allowed the family of a deceased person whose name and likeness was used without authorization to sue.

The defendants argued that the movie was exempted under the right of publicity statute because it was fiction (even though it claimed to be based on fact) and not a commercial use. I argued in a memo to the plaintiffs’ attorneys that the film was not exempted under the statute in that it was “commercial” because of the extensive product placements. In the movie, George Clooney and Mary Elizabeth Mastrantonio have a discussion about what suntan lotion each is using and name the products. I asserted that a dead man was being used to shill for suntan lotion.

 This argument was never argued because the judge dismissed the case. But I did summarize my argument in a chapter in my book Truth and Lives on Film: The Legal Problems in Depicting Real Persons and Events in a Fictional Medium that discussed the Perfect Storm case.

In 2011, I was watching the episode titled “Net Worth” of the TV series The Good Wife and heard the attorneys in the show use the same argument I had suggested in the memo—that the filmmakers were liable under the right of publicity statute because the film in question was not fiction but a commercial use as evidenced by the product placements.  In the show, the defendants settled!

To the best of my knowledge, the argument has not been argued in court. I e-mailed the attorneys for the Perfect Storm case, and they were unaware of anyone else using the argument.

I tried to contact the creators of the show, who also wrote the episode, just to ask if they or their researchers had read my book. I never heard back, probably because they thought I was trying to sue them. The problem with my suing them was that they hadn’t used my expression, just my idea.

It’s possible they read my book in their research for the episode. If so, it would have been nice if they had credited me somehow. It’s also possible that someone else read my book and mentioned it to someone else who mentioned it to someone else who mentioned it to the show’s writers. In other words, once my book was published the idea was “out there.”

I recall reading an interview with George Cukor who was asked if his 1942 film The Keeper of the Flame had been influenced by Orson Welles’ 1941 film Citizen Kane. Both films were about newsmen who try to write a story about a famous man who had just died and find the public and private images of the man don’t match. Both had atmospheric lighting. Cukor said that Kane had not yet been released when he was making Flame, although it was being talked about. He said that something “must have been in the air” that made the films so similar. With my situation, it’s even possible that the writers in the Good Wife just stumbled on the idea independent of me, although it’s more likely that my idea was talked about and became part of “the air.”

And so you can’t copyright an idea. You can sometimes protect it through contract. But that doesn’t happen when you submit something on spec. It usually is possible when you are well known enough to submit a proposal under a confidentiality agreement. The writer Art Buchwald signed a contract with a movie studio and submitted a scenario for a movie about an African prince who comes to America. The producers decided not to use Buchwald’s work, but they made the movie anyway as Coming to America with Eddie Murphy. Buchwald felt they had stolen his idea. He sued, but not for copyright infringement but for breach of the confidentiality agreement in his contract. And he won.

There’s another story about a famous film person getting protection for his idea. In 1946, the filmmaker Orson Welles approached Charlie Chaplin, the great comic film star, writers, and director of The Gold Rush and The Great Dictator and the creator of the "Little Tramp" character, about Chaplin playing the notorious “bluebeard,” who married women and then murdered them. Chaplin did not want to play a serious part, but Welles’ suggestion prompted him to write a comic screenplay about a bluebeard that became his 1947 film Monsieur Verdoux. Chaplin was encouraged by his lawyers to inform Welles what he had done. Welles insisted that the film credits carry the line, “Suggested by an idea by Orson Welles.” In his autobiography, Chaplin said that this was ridiculous since Welles’ suggestion was for a serious film and not what Chaplin later created. But fearing a legal or at least a publicity battle with Welles, Chaplin agreed, and Welles’ credit is in the film.

There are ways to protect your ideas. But if it’s just an idea you can’t do it through copyright.

Copyright 2012 by John T. Aquino. This article is intended for educational purposes only and does not constitute legal advice or a legal opinion.