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Quote of the Day - That was my one big Hollywood hit, but, in a way, it hurt my picture career. After that, I was typecast as a lion, and there just weren't many parts for lions. - Bert Lahr, talking about the Wizard of Oz
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Is The Writing On That Napkin A Contract?

Contracts can come in all shapes and sizes, and in the words of my contracts professor, Eric Andersen, even on eggshells.  That's right.  He litigated a case involving a contract written on an eggshell.  When I saw an article about a contract on a napkin, it didn't surprise me.  Now that I've been practicing law almost 20 years, not much about the law surprises me anymore.  People do the silliest things.  But that's a different story for a different post.

Lawyers are trying to find way to recover for clients who made "the pitch" to Hollywood execs only to be turned down but then find their idea on the small or big screen.  MIPTC extensively covered the fallout from the Grosso decision, and predicted this type of creativity.  It used to be that the studios immediately removed copyright claims to federal court, where federal judges just as promptly dismissed them.  Then came the Ninth Circuit's decision, which opened Pandora's box and increased the causes of action available to screenwriters and others to include state court claims for breach of contract.

The question then becomes what constitutes a contract?  Yes, it's possible to have a contract on a napkin, but it has to contain the essential elements of the contract and be signed by the party to be charged with performance - the screenwriter and the studio exec.

But don't count on getting a studio exec's signature anytime soon.  Studio contracts frequently say they won't pay for generic ideas, and it's more likely that exec will put a contract in front of screenwriters that disclaims liability and likely includes a waiver of that screenwriter's claims against the studio.  That arrangement makes it difficult to conduct business, and requires that lawyers get involved on both sides early in the process - even before the pitch is made. 

What do both sides expect from the pitch?  What determines whether an idea is generic or specific?  What rights belong to each party as ideas are exchanged and built upon? 

There are no easy answers, but pitches without copyrights are unprotected, and without a signed contract, they're still not protected.  As the old saw goes, an oral contract is about as good as the paper it's written on.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, July 30, 2006 at 19:23 Comments Closed (0) |
 
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