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Los Angeles-Stephen Terrell isn’t a copyright lawyer. But last month, he filed suit on behalf of four Californians who allege that Fox Broadcasting Co. stole their idea behind the hit reality television show, So You Think You Can Dance. During a 2003 meeting, his clients told an agency executive about their concept and agreed to write, direct and produce the contestant show if it were accepted. No script changed hands, and nothing was copyrighted. But in a suit filed under six California laws, Terrell said that his clients should be compensated for their idea because they had a contract. The case represents a new type of entertainment lawsuit for his firm, Los Angeles-based Engstrom, Lipscomb & Lack, he said. Cassese v. Martin Erlichman Associates Inc., No. BC353893 (Los Angeles Co., Calif., Super. Ct.). “This case came to us as something new and different,” Terrell said. “You can prove [that] had the idea not been stolen, it would have been accepted by these networks, and the plaintiffs would have been entitled to royalties.” James Janowitz, a partner in the New York office of Pryor Cashman Sherman & Flynn who represents Fox Broadcasting and two other defendants in the case, said he plans to file a demurrer. “I don’t believe that ruling will provide the plaintiffs in this instance any basis for proceeding against our clients,” he said of the Grosso decision. “Our clients have had no contact whatsoever with the plaintiffs.” Idea-submission claims like Terrell’s are on the rise following a 2004 ruling by the 9th U.S. Circuit Court of Appeals in Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004). In that case, the 9th Circuit found that a writer who failed to prove that Miramax infringed on his copyrighted script could sue under a state contract claim because federal copyright laws do not pre-empt it. In recent years, several federal district court decisions had supported pre-emption, prompting defense attorneys to remove idea-submission cases to federal court, where judges frequently grant summary judgment motions. Emboldened by the Grosso ruling, plaintiffs’ lawyers are filing more idea submission claims. “Now that those pre-emption cases are no longer good law, because of Grosso, that hurdle is gone,” said Greg Sater, a partner at Rutter Hobbs & Davidoff who handles idea-submission claims. “It makes it more encouraging to bring those claims, and it makes it more encouraging for lawyers to bring them.” Protecting an idea In Hollywood, not all writers submit copyrighted scripts to producers and agents. More often than not, they provide treatments or have a conversation about their idea for a television show or movie. “In many cases, those ideas have not been written down,” Sater said. “Copyright only protects the expression of an idea, it doesn’t protect the idea itself.” Before the Grosso ruling, idea-submission cases were costly for plaintiffs’ lawyers because they required so many motions on procedural issues, primarily related to federal pre-emption, said Glen Kulik, a partner at Sherman Oaks, Calif.-based Kulik, Gottesman, Mouton & Siegel. He said a lot of lawyers stopped taking the cases because they were too burdensome, expensive and uncertain. “There was a tremendous amount of added work,” said Kulik, who recently brought a suit over The 4400, a drama series on the USA Network. “Many months could go by and considerable expense incurred.” In 1999, writer Jeff Grosso filed suit against Miramax and other defendants for illegally using his screenplay to make the 1998 movie Rounders. In addition to copyright infringement, he sued for breach of implied contract, arguing he was entitled to compensation after meeting with the executives who allegedly submitted his idea to Miramax. A judge in the U.S. District Court for the Central District of California threw out the copyright claim and found that federal copyright laws pre-empted the state breach of implied contract. In its 2004 ruling, the 9th Circuit affirmed the copyright ruling but reversed on the second claim, stating that breach of implied contract “was not preempted by the Copyright Act, because it alleged an extra element that transformed the action from one arising under the ambit of the federal statute to one sounding in contract.” The 9th Circuit declined to rehear the case, and the U.S. Supreme Court denied a petition to review the matter. Gail Title, managing partner of the Los Angeles office of Katten Muchin Rosenman, who represented Miramax in a brief to the Supreme Court, said the 9th Circuit’s ruling conflicts with decisions in the 2d, 4th and 6th circuits. “There really is a need for guidance in this area,” she said. But plaintiffs’ lawyers said the Grosso decision gives them a new opportunity to file idea-submission claims. “It could be written on a napkin, in smoke signals-it doesn’t matter,” said Ivan B. Schwartz of the Law Offices of Ivan B. Schwartz in San Diego, who filed a recent idea-submission suit over the television show Project Runway. “If there is an implied promise to pay for the idea, that has nothing to do with copyright.” Suits proliferate Steven Marenberg, a partner at Los Angeles’ Irell & Manella who represented Mark Burnett Productions Inc. in a recent case involving The Apprentice, said he has noticed an increase in the number of idea-submission claims filed since the Grosso ruling.”It’s already led to proliferation of lawsuits,” he said. John Marder, a partner at Los Angeles-based Manning & Marder, Kass, Ellrod, Ramirez, who represents Grosso, said the 9th Circuit’s ruling prompted him to file new lawsuits over the movies Broken Flowers and The Last Samurai. He said lawyers prefer to file copyright claims, which involve potential damages that include attorney fees. But proving copyright infringement is significantly harder than alleging state contract claims, he said. The Grosso ruling has attracted lawyers who normally wouldn’t handle idea-submission claims. E. Randol Schoenberg, a partner at Los Angeles-based Burris & Schoenberg, said he didn’t want to handle idea-submission claims before the Grosso ruling because federal courts were likely to throw them out, citing pre-emption by federal copyright laws. Last year, however, he settled a case over the FX Networks television show NASCAR Drivers: 360. King v. FX Networks, No. BC322604 (Los Angeles Co., Calif., Super. Ct.). “We’re very much indebted to Mr. Marder and his firm for making this groundbreaking case,” Schwartz said. Schwartz said he plans to use the Grosso ruling to file a motion to remand back to California state court his lawsuit over Project Runway, which was removed to the Southern District of New York, where a separate case is pending against the show’s producers. Lamontagne v. Project Runway, No. 06-cv-04934 (S.D.N.Y.). In his case, Schwartz claims that his client, a Florida resident, submitted a script in 2003 called America’s Fashion Designer Search to a producer who subsequently stole the idea to make Project Runway, which debuted the following year on Bravo. Eric Lobenfeld, a partner in the New York office of Washington’s Hogan & Hartson who represents defendants NBC Universal Inc. and Miramax in the case, said the lawsuit should remain in federal court. “You can’t bring a copyright claim, call it something else, and try to get it in state court as a noncopyright claim.” Defense lawyers said idea submission claims are becoming not only more numerous but more costly and lengthy. “The problem with these cases is: Because they present a contested issue of fact-it’s a question of who said what-it’s hard to get rid of them on a motion for summary judgment no matter how baseless they are,” said George Hedges, a partner at Quinn Emanuel Urquhart Oliver & Hedges who represents Warner Bros. Entertainment Inc. in Marder’s suit over The Last Samurai. “They’re sticky claims,” Hedges said. He said that idea-submission claims might cost as much as six figures if they aren’t dismissed right away. A few months after the Grosso ruling, studios began requiring people who pitch an idea to sign up-front agreements acknowledging that producers won’t pay for generic ideas, said Aaron Moss, a partner at Los Angeles’ Greenberg Glusker Fields Claman & Machtinger. Some even have included waivers of liability. “These cases are usually going to last longer now and become more dependent upon the facts,” he said. “It’s important that the companies and individuals who hear pitches set forth their expectation either orally or preferably in writing before the pitch, so there won’t be a misunderstanding,” he said. But even with the Grosso ruling, idea-submission claims present several challenges. Andrew White, a partner at White O’Connor Curry in Los Angeles, said that federal pre-emption isn’t the only legal defense available. “The beauty of the pre-emption defense is one you could raise on the pleadings, so it’s a defense that was available to get rid of the case on the onset,” he said. But there are “many other ways to defeat these cases.” In a case filed in 2004 against New Line Cinema Corp. over the movie Wedding Crashers, Allison Rohrer, another lawyer at White O’Conner Curry, said that the firm’s lawyers were forced to litigate the case in state court since they couldn’t file for federal pre-emption under the Grosso ruling. They still managed to dismiss the case on a summary judgment motion by arguing that the movie had few similarities to the plaintiff’s idea. The case is on appeal. Reginald v. New Line Cinema Corp., No. SC082446 (Los Angeles Co. Super. Ct.). Moss said, “You still need to show that there’s been access and that the work that the defendant has put out was based upon the work you pitched. If you can’t show that, it’s still thrown out on summary judgment.” On July 12, a Los Angeles Superior Court judge dealt a blow to Grosso by granting Miramax’s summary judgment motion on the breach of implied contract claim. Louis Petrich, a partner at Los Angeles’ Leopold, Petrich & Smith who represents Miramax, declined to comment. “We plan to appeal, and we’ll win it,” said Marder, Grosso’s attorney.

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