The IP Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

“Lost” and the Independent Creation Defense

Posted in Entertainment Law

 

By James Kachmar

We’ve become used to lawsuits being filed after a movie, TV show or song becomes a popular hit. Generally, once a show or song hits number one, someone files a lawsuit claiming that the song or show was their “idea”. ABC’s hit show “Lost” is no different. In 2009, Anthony Spinner, a television producer, writer and former studio executive brought an “idea submission” lawsuit against the American Broadcasting Company, Inc. (“ABC”) claiming that it used his ideas to develop the hit television series “Lost”. 

In the mid-1970s, Spinner was retained by ABC to develop a two-hour pilot tentatively called “L.O.S.T.” for $30,000. The script, which was completed in 1977, concerned a group of U.S. Olympians who survive a plane crash in the Himalayas. They proceed through a tunnel and discover a land inhabited by dinosaurs and prehistoric people. ABC decided to pass on the pilot, concluding it would be too expensive to produce. In 1991 and 1994, Spinner met with other executives at ABC to pitch a similar television show; however, the crash would take place in outer space. Once again, ABC passed on Spinner’s idea. 

Nearly 30 years later, an ABC executive came up with the idea of doing a show about a survivor on a desert island that would combine the elements of the hit movie “Castaway” with the hit TV show “Survivor”. He wanted to call this television show “Lost” based on a failed reality based TV show.

 

 

During a company retreat, he pitched the idea of the series at a brainstorming session and a writer was hired to work on a draft pilot for the idea. The writer working on the Lost script prepared an outline that second premised more on the famous book, “Lord of the Flies.” ABC advised the writer that they were looking for something different and hired two new writers to flush out ideas for the new show. Over the next several months, they came up with a script and casting began for the pilot of the new “Lost” show. In September 2004, Lost’s pilot premiered in two parts and the show ran for six seasons until 2010. Each of the writers and producers involved in the development of “Lost” testified that they did not have any communications with Spinner, were unaware of the script he had submitted to ABC in the mid-70s and had never seen the script he had prepared.

Nevertheless, Spinner sued ABC and alleged breach of an implied-in-fact contract claiming that he had submitted the 1977 script with the expectation that he would be paid by ABC if it was used. ABC moved for summary judgment in 2011 on the grounds that the creators of Lost had no reasonable possibility of access to Spinner’s script; Lost was not substantially similar to Spinner’s work (Spinner conceded that Lost was not similar to his outer space idea) and that the undisputed evidence demonstrated that ABC had developed Lost independent of the script submitted by Spinner in 1977. The trial court agreed with ABC and dismissed Spinner’s claim. Spinner appealed.

The appellate court began by recognizing that generally there is no property right in an idea, citing an old maxim that ideas were as “free as the air to common use.” However, the California Supreme Court had decided in 1956 that an idea can be the subject of an express or implied contract when its disclosure or submission is offered in exchange for consideration of a promise to pay compensation. 

To prevail in an “idea submission” case, a plaintiff must typically show: (1) they clearly conditioned the submission of their idea(s) on an obligation to pay for any use; (2) the defendant, knowing this condition before the plaintiff disclosed the idea, voluntarily accepted the submission of the idea; and (3) the defendant found the idea valuable and actually used it. The Court recognized that the factor that was at issue in the appeal was the “use” element. The Court stated that Spinner may be able to “raise an inference of use by showing the defendants had access to [his] ideas and the defendants’ work is substantially similar to the plaintiff’s ideas.” However, even if Spinner could establish an inference of use, ABC could dispel that inference with evidence that conclusively demonstrated that it created Lost independent of Spinner’s idea. Specifically, ABC had to produce evidence of independent creation which was “clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved.” If ABC could make such a showing, then it was entitled to summary judgment as a matter of law.

In turning to the factor of access, the court likened idea submission cases to those involving copyrights. The “bare possibility that a defendant may have access to the plaintiff’s work is not sufficient to withstand summary judgment”; rather the plaintiff must present evidence “that the defendants had an opportunity to view or to copy the plaintiff’s work.”     Spinner’s only evidence was that he had submitted a script to ABC in 1977 and that the producers of the show Lost worked for that company. The mere fact that they shared a common employer was insufficient to meet Spinner’s burden. Although Spinner claimed that ABC had a policy in 1977 of retaining all scripts submitted, the uncontroverted evidence was that ABC was never able to locate Spinner’s 1977 script and none of the persons involved in developing the Lost television show had reviewed it or even knew of its existence.

The court found it significant that ABC had offered uncontroverted and substantial evidence that it had created the Lost television show independent of the script submitted by Spinner. This evidence included: (1) the ABC executive’s testimony that he had created the general concept for Lost while on vacation; (2) this idea was pitched to other executives at a brainstorming session; (3) a writer was hired to work on a draft script which included elements of a plane crash on a seemingly deserted tropical island; (4) after this transcript was rejected, other writers were hired and helped flush out many of the main characters and concepts that became part of the Lost pilot; and (5) all of the key players in creating Lost did not know Spinner or anything about his 1977 script. The court concluded that “this evidence of creation independent of Spinner’s work is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved.” The court concluded that the trial court properly granted summary judgment to ABC on the grounds that it had established the independent creation defense as a matter of law.

The Spinner case is a reminder to writers, producers and studios that it is essential to maintain a record of how a show or song is created, developed and/or produced. Should it become a hit, it is possible (if not likely) that someone will come out of the woodwork claiming that they had the “idea” behind the hit. Having a clear record of the show’s or song’s development can help a defendant in an “idea submission” case set up an independent creation defense to prevail as a matter of law.