Protecting Your Creative Property

Document, Document, Document!

By Stephen Swalsky, PactUS Expert

It’s the eternal conundrum:  How do I pitch my project so someone will buy it, but not have my cool concept or format stolen? There’s never a guarantee, but there are ways to keep the law and the facts on your side when sharing your work with the outside world should you have to prove that someone stole or infringed your copyright.

First Things First – Register Your Format/Copyright!

Congratulations: You’ve got a great idea with access to a previously untapped world with fantastic characters. That puts you a step ahead in making your project a success but you need to build in some protections for you and your company.  Make the smart play to become a member of FRAPA – the Format Recognition and Protection Association (https://www.frapa.org/).  Once a member, register your creative work with them digitally and provide as much specificity as possible by uploading treatments, scripts, story lines, etc.  Always best to get a head-start on this early in the process and you can update and register your format again as needed.  Another route for you is to file a copyright registration on your work before trying to sell it.   There are plenty of websites, such as copyright.gov, that can assist you in registering your copyright on your creation, be it literary, sound recording, visual, videogame concept, etc. 

Next Step – Document, Document, Document!

Now that you’ve registered your format/work and are aggressively pitching it, remember to always keep a paper trail as to where you’ve shown and submitted it. There are no hard and fast rules for creating this log but here are some general thoughts:

  • Keep a project-specific electronic/email file and a hard notebook with days, dates, times and all correspondence to and from interested (and disinterested) parties with whom you’ve shared your concept and work.  When sending things electronically, always go into the email “Options” tab and include the voting button options of “Request a Delivery Receipt” and “Request a Read Receipt” just in case at some point in the future you need to prove to a court that an infringer did indeed have access to your project. It will put the onus on them to explain it away.
  • Include copyright notices in the materials that you are sharing.  At minimum, it puts recipients on alert that you will aggressively protect what is yours.
  • Indicate that the provided materials are “Privileged and Confidential” or “Commercial in Confidence”. This is an advance warning that if your shared materials are disclosed, it may result in damage to your commercial interests and such sharing or disclosure is forbidden without your permission.
  • When pitching in person, even if it looks redundant, always confirm in an email the date and time of the meeting.  Even better if the email also documents whom the meeting attendees will be.
  • As many pitch meetings will be in a corporate building with security, save the “Visitor” guest pass that you receive as this will often include the company, time and date for your meeting.  Don’t forget to legibly sign and date the “Guest Log” at the front desk when you arrive.
  • While pitching is an exciting time and you are rightfully focused on your home-run presentation, write down all of the particulars, especially who is in the room hearing your pitch and their title.

Realistically, no executive at a media company will agree to sign your non-disclosure or confidentiality agreement so no point in wasting your time and funds in having one prepared.  Conversely, you will likely be required to sign their vague and broad release that acknowledges that your submission will not be accepted or reviewed unless you waive any future claims.  Media companies try to use the proactive defensive umbrella of “we hear and generate so many ideas that we may already be working on a comparable project.”  While signing these forms could be a risk, there is little way around them.  This is why you must document, document, document in advance of the meeting! 

Your Unique Concept Has Been Pilfered – Now What??

It is one thing to have pitched a generic non-scripted show about a wacky former star and their crazy family and to later hear that one of your prior pitch recipients is now doing a show about a different wacky former star and their crazy family.  It’s quite another where you have a fundamentally unique project where you cultivated and secured access to an unexplored niche only to discover one of the nets you pitched to (and who passed) is now doing a too close for comfort variation of your project.  Should you believe that someone is piggy-backing on your diligence and research and has infringed your copyright, to triumph, you need to prove that the interloper had access to your work (which is why you document like you have OCD) and the infringing work is “substantially similar” to what you created/pitched.

"Substantial Similarity"

"Substantial similarity" is a legal term of art which compares one work with another, especially when allegations of copying have been made.  The court will determine if the similarities go beyond being merely coincidental.

Because direct evidence of actual copying by a defendant rarely exists, once the access hurdle has been cleared (which is why you documented thoroughly in the first place and retained your proof), the courts will look to the following:

  • Uniqueness, intricacy, or complexity of the similar elements of the projects.
  • If your work contains an unexpected or idiosyncratic element that is repeated in the alleged infringing work.
  • The appearance of the same errors or mistakes in both works (which is why maps contain fake “paper towns” to trip up copiers).
  • Obvious or crude attempts to give the appearance of dissimilarity, i.e., covering their trail.

To prove improper appropriation, you will need to show that the defendant’s work is substantially similar to your original, copyrightable expression.  The traditional test for substantial similarity requires a subjective, factual analysis called the “audience test”.  This essentially asks whether the defendant wrongly copied enough of your protected expression to cause a reasonable, impartial “regular person” to immediately detect the similarities between yours and the defendant’s work. 

Idea theft cases are notoriously difficult to win, but you stand a fighting chance if you can prove undeniable access and similarities that are so striking that they go well beyond mere coincidence. It should not come as a shock, but sometimes in our business we come across shady characters and to best protect yourself, always be in the habit of creating a thorough paper trial.  You never know when you may need to assert your rights or, conversely, defend against someone making a claim against you. 


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