LOS ANGELES DÆLY JOURAL LITIGATION WEDNESDAY, APRI 24,2013 · PAGE: 'Lost' idea-theft claim goes down the hatch

By Jens B. Koepke cess alone is even more potent if tht plaitif's work was submitted man) years ago and the recipients are nc about the rising tide longer employed by the defendant. of idea-theft claims in · Likewise, plaintifs cannot reI) Much hasHollywood. been Thesewritten tsu- on the substantial similarity be. nami warnings became more shril tween the works alone to establish afer the 9th U.S. Circuit Court of that inference of use. Appeals ruled en banc (in Montz v. · Substantial similarty can be Pilgrim Films & Television Inc., 649 negated or neutralized if the defen. F.3d 975, 976 (9th Cir. 2011)) that dant can establish the independent idea theft claims are not necessarily creation defense. preempted by federal copyright law. · And maybe most important for However, a recent California ap- plaintifs in the post-Montz world is pellate court decision ilustrates how that the factual nature of the issues hard it actually is to maintain and of access, substantial similarity and win an idea-theft claim. Whether independent creation does not en- the tide now recedes remains to be sure that summary judgment won't seen. happen. It can happen. While idea-theft claims remain · Defendants can, of course, be viable, plaintifs should take stock buoyed by this decision. It shows of the strength of their evidence, that even if one can't knock a case because this case shows that these out on preemption, it can stil be suits can still be dismissed as a disposed of as a matter of law. matter of law, even if they are not · The key to provig independent preempted. And while defendants creation (and thus refuting substan- can take heart from this decision, tial similarity) appears to be havig it shows they must marshal good a clear and persuasive documentary documentary evidence establish- and declarative trail that leads' the ing their independent creation of court from the genesis of the idea the work, as well as have strong to the completion of the alegedly evidence negatig any real access to improper work. plainti's work. · The key to refuting access In Spinner v. American Broadcast- is to sever any links between the ing Companies, Inc., 2013 DJDAR intermediary who received the 4477 (CaL. App. 2nd Dist. April plaintif's work and the defendant's 5, 2013), experienced television Associated Press representatives who ultimately cre- producer, writer and former studio Damon Lindelof, right, co-creator and executive producer of the television series "Lost," participates in a panel discussion on the show alongside ated the work. cast members Josh Holloway, left, and Evangeline Lilly, in 2010. executive Anthony Spiner sued Whether Spinner rubs the per- ABC, claiming it had stolen his ideas light, the writers further developed "Lost" premiered in September 2004 of the work may not be enough. no inerence of use could arse from fume off the rose of idea-theft claims in developing the TV series "Lost." the script and the characters, modi- and ran for six seasons. There has to be a sufciently strong access, it would have to be based is not clear. At a minimum, it should In late 1976, ABC had hired Spinner tyng them as the actors were cast. Spinner sued for breach of an nexus between the intermediar on substantial similarity, but that be a wake-up call to any plaitis (through a production company) to The script involved a plane crash implied-in-fact contract, alleging who received the plaintiff's work and any such similarity was rebutted lawyer lookig to prosecute such a write a two-hour pilot tentatively and a group of survivors, but the cast that a contract arose when ABC so- the creators of the offending work, by ABC's uncontradicted evidence claim, and a road map to any defense entitled "L.O.ST" Afer developing also included some mysterious char- licited his 1977 script, he submitted that nexus being more than sharing that it independently created "Lost." counsel seeking to dispose of such a an outlne and synopsis and meet- acters already on the island, as well it expectig payment if ABC used a common employer. The court gave That evidence consisted of docu- claim. ing with ABC, Spinner then wrote a as some mysterious characteristics it, ABC accepted it knowing pay- examples: ments memorialzing the original full-length script and a second draf. ment was expected, and then ABC "For instance, the nexus may be brainstorming session ABC execu- The script involved a group of eight used it without paying him. This sufficiently strong when the inter- tives had about the "Lost" idea, as Jens B. Koepke is a partner with plane-crash survivors in the Hima- so-called Desny claim has its roots mediary was in a position to transmit well as "evolution of the LOST pilot the appellate practice group at Morr layas who go through a mysterious Polich & Purdy LLP He is a certi- in the state Supreme Court decision the plaintifs' work to the creator, from six pages of notes to a 90-plus tunnel in the mountain and emerge in Desny v. Wilder, 46 Cal. 2d 715 was a supervisor with responsibilty page script, over the course of ap- fied appellate specialist and is on the in a strange prehistoric world - a Access means that executive committee of the Intellectual (1956). But ABC won at summary for the creator's work, was part of the proxiately three months." More- "lost world." ABC ultimately decided the defendant had an Propery and Entertainment Law Sec- judgment, because it had shown that same work unit, was a contributor of over, all the key players submitted to pass on the project in 1977. The opportunity to view or tion of the Los Angeles County Bar As- ABC executives involved left the it lacked access to the 1977 script creative ideas or material to the declarations that they had never copy the plaintiff's work, and had proven "Lost" was created creator's work, or was otherwise in seen Spinner's 1977 script, nor that sociation, as well as the membership network a few years later. but more than a "bare independently. The Court of Appeal contact with the creator regarding anyone had ever mentioned any of chair of the Judge Michel Intellectual Fourteen years later, in 1991, Spin- Propery Amercan Inns of Court. possibilty" of access afrmed. some subject matter that overlapped Spinner's scripts or treatments to ner again verbaly pitched his scrpt The court explained that an infer- with the plaintiffs' work." them. And, of course, all the ABC ex- idea to a new ABC executive. At her is required - mere behest, Spinner reworked the idea ence of the defendant's use of the None of these existed in Spinner's ecuties who haà received Spiner's "corporate receipt" of the plaintiffs idea or work may arise by case. Instead, Spinner's main argu- work had left ABC before the "Lost" to be a futuristic story concerning a work may not be enougn. showing the defendant had access mentwas that since ABC policy creative team got there. Spinner spaceship crash and survors in out- had a to the idea and that the works are of putting all submitted scripts in a presented no evidence to contradict, er space. Once again, ABC passed substantially similar. However, the script librar, the 2003 development instead argued that the declarations on the project. In 1994, Spinner re- defendant can dispel that inference team could have had access to the were "self-serving" statements by submitted the outer space treatment with evidence that it independently script. "This is guess work," said the interested witnesses. The court's of the island itself. ABC produced to a different ABC executive, but created the work. As a result, a court, particularly since the librar response: "This argument fails to documents memorializing these de- that also went nowhere. Those two factual issue on substantial similar- was not centralzed or searchable. persuade.... We may not deny sum- ABC executives also departed the velopment and creative brainstorm- ity may not be enough to overcome And any such assumption is even ma judgment on grounds of credo network a few years later. ing meetings in 2003. All the wrters summar judgment when indepen- more implausible, since there was ibilty when ABC has established According to ABC, the television and the ABC executive declared that dent creation is established. no nexus between the ABC execu- the independent creation defense they had never spoken to the previ- series "Lost" did not get developed In afrming, the Court of Appeal tives Spinner submitted his scripts thusly." ous ABC executives, nor seen the until 2003. An ABC executive first held that the plaintif's proof of to (long gone from ABC) and the What lessons can we draw from hatched the basic idea on a beach 1977 script, nor spoken to Spinner. access was inadequate as a matter of creative team at ABC that ultimately Spinner? Here are a few: in Hawaii and then ultimately hired Although ABC's policy was to hold law. Access means that the defen- developed "Lost." "In sum, Spinner · Plaintifs cannot rely solely on onto submitted scripts in a script li- various writers to flesh it out. He dant had an opportunity to view or has shown only a bare possibility of an inference of improper use simply saw it as a fusion of "Cast Away," brary, a search had not turned up the copy the plaintif's work, but more aCCess based on speculation, suppo- because the defendant's employer "Survivor" and "Gillgan's Island." 1977 script in that library, but did re- than a "bare possibilty" of access is sition, and guess work." had access to the work. Once the pilot was given the green veal the 1991 outer-space treatment. required - mere "corporate receipt" Second, the court held that since · The weakness in relying on ac-