I’m not a lawyer, and I don’t play one on TV, but my life in TV format and concept development at top TV companies has given me a firsthand understanding of how the process of creating and pitching ideas for TV and film impacts the creator’s ability to protect their project. “How can I protect my idea for a movie or TV show?” and “Is my reality show idea or movie pitch protected by copyright?” are two critical questions I often hear from new screenwriters and producers.
The debate over whether or not ideas can be protected is one that often misleads the Writer/Creator in understanding their intellectual property rights, and a company’s position on the issue. So let’s dive in for an understanding of how copyright protection and the process of pitching ideas intersect within the TV and film industry.
When people tell you “ideas can’t be protected”, they’re telling a half truth. The truth is more specific.
Judge’s rulings in intellectual property infringement cases have confirmed “stock ideas alone have no protection.” Examples- “It’s a show about race car drivers” or “the show follows a worldwide scavenger hunt” or “the contestants are all blindfolded” are all ideas, but those basic ideas alone are just stock ideas. Protection of an intellectual property for TV or Film lives in the specific and unique expression that is created beyond a stock idea, and ultimately another party’s solicitation and exposure to that project prior to their own development of the same. In short, you better be original, and if they viewed the pitch, they better be able to prove they were already developing the same project prior to their exposure. This sets up the natural conflict and fear within the process of developing show ideas between those pitching and those buying. So let’s throw some cold water on the debate with some practical understanding.
Protection of an intellectual property lives in the specific and unique expression that is created beyond a stock idea.
A Copyright Is Not A Patent: I’ve seen countless new writers and creators profess belief that no other person is allowed to create the same project they’ve written, because they’ve registered it with a copyright service. They’ll even ask how they can check to see if anyone else has already created a specific concept before investing time and resources. First, it’s an impossibility to use ESP or other super-powers to scan the minds and desktops of all the writers in the world. Second, written creative works are not widgets that win a patent as a product and prevent others from going to market with the same type of widget they created. Similar or identical concepts are often created independent of one another, each taking a different path toward being produced. Knowing the industry is filled with creative’s and companies who invest heavily in development, it becomes a race to the top- whose pitch can connect with the right producer or executive who can then take the ball down the field and score.
Having a very specific and unique expression of your pitch in a written form- developed beyond being a “stock idea” is what gives you copyright protection.
With written intellectual properties, protection comes into play when three things are established:
- The producing company solicited the project from the person making the claim.
- The person making claim has a third party copyright archival of the intellectual property as a time-stamp and proof of creation.
- The project produced has a significant amount of elements that are identical to the project that was pitched. Keep in mind, proven exposure may establish liability if the conditions are correct. Having a very specific and unique expression of your story or format in a written form, developed beyond being a “stock idea” is the key element you copyright protection.
Why Production Companies Require Material Release Forms: Imagine owning a company with a team of creative executives, all developing projects that cover a very broad spectrum of subjects and themes within different genres. Then one day a person shows up and pitches a concept for a reality series very similar to several you’ve already developed. If that person then later sees that you produced what were your own project, and that being very similar to theirs, they’re going to believe you stole the idea from them. Production companies must protect their own, simply because of the position they hold and how they operate developing so many projects.
But let’s get more specific about why writers and creative’s from outside the industry are almost always required to agree to a material release form, while producers and creative’s working in the industry more often are not. It’s because those who are already in the industry are tied to companies whose lifeblood is maintaining positive business relationships within the industry among their peers, and have too much at stake. Those colleagues also understand that if you want to sell something, you have to expose it. They’ll let their agent or manager make a simple query about any question of conflict, and they’re then shown the origin and trail of development. More often when pitching in person, the executive will politely cut off the pitch and express, “Sorry, I have to stop you. We’ve been down the road on this type of format before and it’s a non-started because of x-y-z.” or “We actually have something too close to this in development already. Better we move on. What else have you got?”
The Triangle of Protection:
- Work to develop your pitch with highly unique content that to the best of your knowledge hasn’t already been done, and as a whole- projects a truly original story or concept. Keep in mind that this is the universal challenge within the industry. Even the top companies do not know with certainty that others are producing the same project. It’s a calculated crap shoot.
- Get protection by archiving your original draft with a third party registry prior to pitching it. Do this after you’ve fully developed your written pitch.
- Always be sure you have proof of exposure when you do pitch it to producers or any outside entity. Electronic record is what you want.
You can’t sell something if you aren’t willing to expose it: We’re in an industry unlike any other- with opportunity for anyone from any corner of the creative community to see their ideas come to life. You can’t pitch Ford Motor Company an idea for a new car. But you can pitch an idea for TV and Film and be part of the painful and exciting process of seeing it come to life. Trust that process, but do the work to protect your property.
Register your script with The Writers’ Guild of South Africa.