Legally Speaking, It Depends: Ideas are Free to Steal?

“Since ideas aren’t necessarily protectable, other people’s ideas are fair game, right?”

For the most part, nope. Sorry.

Granted, there are some ideas that aren’t created by anyone. They already exist– have to exist to be true to the genre. (This is called “scènes-à-faire” and we’ll go into this in depth in later columns.) For example, pirates go to sea on pirate ships, fly the Jolly Roger, have surly attitudes, pillage, plunder and say “Arrgh” all the time. Use of these ideas in a pirate movie are a given. They’re what make any movie a pirate movie and to leave them out would play real havoc with audience expectations. So these ideas are not protectable and are fair game to any pirate movie writer.

But when an idea gets very specific to a particular story or character, the use of that idea can rise to a level of protectablity, even reaching a court recognized version of copyright. What kind of idea can rise to this level? Well, it depends (you could see that coming, couldn’t you?) But when an idea associates itself strongly to a particular, recognizable and repeatable performance of that idea, then you shouldn’t be copying it. It’s the difference between dressing up as a generic pirate for Halloween or dressing up as Johnny Depp’s Captain Jack Sparrow. There is enough uniqueness in that performance, established by consistent, replicated performances through all the movies to establish a clear relationship and audience recognition factor. Even though all of the elements chosen to make up the look and character of Sparrow (sorry, that’s Captain Sparrow,) were chosen carefully from the scènes-à-faire of pirate lore, the specific choices and performance given create an indelible, memorable (and very likely protectable) original.

Fictional characters can be unique enough to be protected by copyright law (and to lessor or greater extent by other laws like trade mark.) It is not always the case and the courts are still figuring this one out. The great judge Learned Hand started the clarification with an off-hand comment within Nichols v. Universal Pictures Corp. 45 F.2d 119 (2nd Cir. 1930). The debate as to whether a character is sufficiently defined to be protectable rages on even today, and even when it is established that something is protectable, just what that is and who owns it is hotly contested. (Just look to the series of Superman recent and ongoing cases wrangling over who owns the man of steel.)

SIDEBAR: The fictional character copyright, separate and distinct from and not a derivative work of the source material that embodies it as alluded to in Hand’s original case, even if recognized as such by the courts still has some stumbling blocks that have yet to be addressed. For example, prior to being able to bring an infringement case into Federal court it is a requirement of a U.S. copyright owner that the copyright claim must be registered with the U.S. Copyright office. The problem is, there is no form acceptable to the copyright office on which you can claim authorship of a fictional character. A formality usurped by a formality. Oops.

“But copyright eventually runs out and it falls into the public domain, doesn’t it?”

We’ll definitely have many, many discussions about the public domain in future columns but it is correct that a truly public domain character is free to be used in a new work, at least with regard to the scope of copyright law. But tread carefully.

Let’s say you want to write a screenplay where Tarzan meets Sherlock Holmes. Tarzan was written by Edgar Rice Burroughs, first appearing in 1912. Holmes first appeared even earlier in 1887 in work by Sir Author Conan Doyle. Surely it should be clear to anyone under the most cursory examination that these two very old works have fallen into the public domain by now, right? So there should be no problem using these characters in a wholly original work, right?

Tell that to Philip José Farmer, a pretty famous writer in his own right. In 1974 he wrote a short novel called The Adventures of the Peerless Peer that essentially had these two famous characters actually meet. And he was quickly met in court with accusations of copyright infringement. Eventually the book was taken out of print, later rewritten to be republished replacing the Tarzan depiction with Mowgli from the Jungle Book. And there is murkiness as to whether the character of Sherlock Holmes is free for the picking as well as a current court case is attempting to clear up.

So are we destined to only write about our own ideas and create brand new characters and situations every time we sit behind a keyboard or face the wrath of zealous protectors of uncertain rights? Of course not. Just look at the prevalence of scripts that are sold on the back of a “high-concept, elevator pitch”. For those who haven’t come across myriad of articles discussing these terms already (And why haven’t you been reading those articles? Shame on you.), a high-concept idea is one that can be defined in a nutshell. Once spoken, the entire film, marketing campaign and potential profits pop into the mind of the producer who hears it. They can see how they can make it happen, a no brainer. An elevator pitch is the shortest possible encapsulation of the complete movie, ostensibly pitchable within a very short elevator ride, optimally in a single sentence. These pitches go on all the time and completely rely on stealing other people’s successful ideas.

For example, you may have heard that Hollywood was awash with pitches in the vein of “It’s Die Hard on a …” As long as you didn’t goof and fill in that blank with “Office Building” the producer understood exactly the tone and type of movie being discussed. For example, if you heard “Die Hard on a bus” you’d immediately think of the movie Speed. The successful pitch steals a lot of the idea and feeling of the inspiration, throws in a twist or two (casting a female lead, bumping up the supporting cast’s role) but essentially it’s a rehash– a theft, if you will– of a proven formula.

The key thing here is that the idea of the original is replicated to some extent by someone other than the owners of the first movie. As long as the characters are changed “enough”, the story is original “enough”, you can get away with it. Time and time again. Don’t believe me or think it doesn’t work that often? Look at the movies currently in a cinema near you and see if you don’t find a “Die Hard at the White House” there.

But if the ideas are too close to the original or the original’s owners are particularly litigious, you might have a difficult time convincing the producers you show your script to try to make your movie. You shouldn’t despair, though. If you write it well enough you could potentially have it end up on the this year’s version of Franklin Leonard’s The Black List of great scripts that likely won’t get made. Just make sure you don’t end up creating a pitch as convoluted (though, quite brilliant and funny,) as Patton Oswalt’s recently attempted while improvising a filibuster scene on Parks and Recreation. (It would be a nightmare for the legal departments of all the studios involved, but, I know I’d pay to see that version of the movie!)

And that’s how, in theory, you can steal an idea and get away with it. But remember, it depends…

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