Q: What is the distinction between plagiarism and idea theft?

A: First of all, “plagiarism” is a term commonly used to describe the copying of someone’s written work, but the term has largely disappeared from California law. What was once known as “plagiarism” now comes within the ambit of federal copyright infringement.

To understand the difference between copyright infringement and “idea theft,” it is important to realize that ideas are, under the law, said to be “as free as the air.” In other words, you can think up an idea, but you can’t have a monopoly on that idea and you can’t copyright the idea alone. You can, however, copyright your expression of the idea—the way in which the idea plays out, the characters, setting, etc.—in the form of a screenplay, treatment or other work.

A claim for copyright infringement arises where an infringer has (1) access to your work and (2) there is “substantial similarity” of expression between your work and the infringer’s work. What this means is that if someone reads your work and then creates a work that is similar in such elements as plot, theme, dialogue, mood, setting, pace and sequence of events (which are the elements courts look to in evaluating claims), you would have a federal copyright infringement claim. This is true, by the way, whether or not you ever officially registered your work with the U.S. Copyright Office. Although there are certain benefits to registration, under current law you have a copyright in your work from the moment that it is “fixed in a tangible medium of expression,” i.e., when you write it down on paper or create a file on your laptop, even if the work has not been registered.

In addition, the law has also developed the concept of “idea theft,” known technically as “breach of implied contract.” As so often happens in Hollywood, you may pitch an idea or submit a spec script to a producer in hopes that they will produce your idea. Even though ideas are “as free as the air,” if you disclose an idea to a producer under circumstances which suggest that there was a mutual understanding that you would be paid in exchange for your idea, an “implied” agreement arises between you and the producer with regard to the idea. If the producer later uses your idea without compensating you, then you would have a claim for idea theft or “breach of implied contract.” This is true despite the fact that you only submitted an idea, which would not be copyrightable. Breach of implied contract is an entirely different claim, based not in federal copyright law, but in state contract law.

A real-world example: Let’s say you wake up one morning with a great idea for a film about a child who grows up orphaned and penniless in the slums of India and as a teenager wins big on a television game show. Anyone else is free to dream up this idea independently and create their own work with that main idea. However, if you write a script based around your idea and someone else with access to your script writes a story that contains enough similar expressive elements (e.g., the infringer’s film segues between the present and the past to show how the main character knew the answers to a series of game-show questions, the infringer’s film contains similar characters and situations, etc.), then you would have a claim for federal copyright infringement.

Or let’s say that you are certain that your idea could be an Academy Award-winning film so you pitch it to a production company. The production company informs you that they are very sorry, but they are devoting all their resources to a blockbuster about flesh-eating vampires and are not interested in your touching tale of a young person’s escape from poverty. If, in fact, they turn around and make a film that centers around the idea of a child from the slums who wins a large jackpot on a game show, even if there are differences in the way the two films play out, you can make a claim for breach of implied contract (idea theft) and assert that they knew you expected compensation for your idea, but that they failed to pay you for its use.

This area of the law can be complex, so if you feel that a person or company may have used your work in creating their own, it may be helpful to consult an attorney who understands the applicable standards for similarity in the copyright and breach of implied contract contexts and who can evaluate your potential claims.

Jennifer McGrath, an attorney at Kinsella Weitzman Iser Kump & Aldisert, a high-profile, L.A.-based entertainment litigation firm, handles a variety of entertainment litigation, intellectual property and general commercial matters. She has a diverse litigation practice in which she represents both plaintiffs and defendants in cases involving contractual disputes across a wide range of industries, as well as cases involving idea submissions, copyright infringement and unfair competition. In 2007, McGrath was named a “2007 Southern California Rising Star” by the publishers of Los Angeles Magazine. She is a graduate of the University of California, Los Angeles (B.A., 1997, History) and the University of California, Los Angeles (J.D., 2000).

Image courtesy of 20th Century Fox.