“Piece of the Action” Element Bars Preemption of Claim

by Janette Spencer-Davis, Legal Editor, CCH Copyright Law Reports

A screenwriter’s state law breach of implied contract claim, alleging that a television producer and television network used his concept for a television series without compensating him, was not preempted by the Copyright Act, the U.S. Court of Appeals in San Francisco held. The understanding that the screenwriter would receive a partnership or “piece of the action” if the network used his idea was an extra element that transformed the claim from one asserting a right exclusively protected by federal copyright law. Accordingly, a three-judge panel’s decision upholding a district court’s dismissal of the screenwriter’s claim as preempted was reversed.

Although a concept for a film or television show cannot be protected by a copyright, it can be stolen if a studio violates an implied contract to pay the writer for using it. In the entertainment industry, writers pitch scripts and concepts with the understanding that they will be paid if their material is used. A writer and producer form an implied contract under circumstances where both understand that the writer is disclosing his idea on the condition that he will be compensated if it is used.

Copyright law does not preempt a contract claim where a plaintiff alleges a bilateral expectation that he would be compensated for use of an idea. The “agreement to pay” for use in a breach of implied contract claim is the extra element making the claim substantively different from a copyright claim. Conditioning use of the screenwriter’s idea on granting a partnership or “piece of the action” was no different than conditioning use on “payment” for use (Montz v. Pilgrim Films & Television, Inc., 9thCir, ¶30,070).
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