Illinois Lawyer Referrals and Legal Guidance
The Law of Ideas
The sharing of ideas promotes innovation, and the law recognizes this. Exchanging ideas, building on them, and even using someone else’s, all contribute to progress in areas like art and science. For this reason, you cannot copyright an idea. If your friend tells you their idea, and you act on it, you may be out a friend but you likely haven’t done anything unlawful.
So what does a copyright protect? It protects tangible forms of ideas – books, movies, television shows, articles, art, etc. These are called “expressions” of an idea, and if someone else copies your expression, you may have a case for copyright infringement.
Another way to protect an idea is to be careful when sharing it with others. You can’t sell your idea without presenting it to a potential buyer, so disclosure is necessary. You just need to make clear to the other party that you expect payment if your idea is used. If your idea is later stolen, you can’t sue for copyright infringement, but you can sue based on contract law.
Here is more information on each type of case:
Copyright infringement cases
If a work is copyrighted, another person can’t copy it and call it their own. Copyright is automatic and occurs when a work is “fixed in a tangible medium,” i.e. published. You can also register your copyright – it’s not necessary for protection, but it is a prerequisite to filing a lawsuit.
In most copyright infringement cases, a book or movie isn’t copied word for word. Most cases fall into a large gray area, where a work is similar but not exactly the same. The test is whether the second has a “substantial similarity” to the first.
It is not a violation to copy generic elements. For example, consider a television drama about an urban police department. There is nothing original about this; it’s been done many times. And in each there were similar elements – detectives with personal issues, relationships between two characters, a corrupt cop. There are only a few ways to present a television police drama, and they will inevitably have common elements. So it comes down to the specifics of how these elements are presented.
When suing for copyright infringement, you have to prove that: (1) you owned a valid copyright, (2) the defendant had access to your work (saw it, read it, etc.) and (3) the defendant copied your work (by proving a substantial similarity between the two).
Take precautions. Mark your work with a copyright symbol. If you are creating something, you may want to register your work with the U.S. Copyright Office, although some choose not to because it’s public record. If you are on the other side of this situation, and you anticipate being accused of infringement, get an attorney on board early in the process to help you avoid a problem. Also, there are some exceptions where using someone else’s work – or at least portions of it – is allowed. One is called “fair use,” where a work can be used educational purposes.
Idea theft, or idea submission, cases
These cases usually involve a person who is trying to sell an idea – for a movie, book, or anything else – to a business. The idea is rejected, and then later the person finds out that their idea was actually used after all, and they weren’t paid for it.
In order to successfully sue for idea theft, you have to prove that there was an expectation of payment if the idea was used and that the defendant was aware of that expectation. You are suing for breach of contract. The contract doesn’t have to be written and signed; it can be implied.
When an idea is submitted, both the person presenting and the person receiving can take precautions to avoid a problem later on. For the idea presenter, it’s important to create a clear expectation of payment. You can ask the other party to sign a non-disclosure or similar agreement, although this might only be an option between parties who have worked together before. It should mention payment, or at least the expectation of payment, if your idea is used.
If you are a business owner who is accepting a submission, there are things you can do to protect your business from liability, whether it’s requiring that your own agreement is signed before accepting submissions, or not accepting them at all, or altering the contracts given to you by those submitting work. An attorney can be helpful in deciding which precautions to take. If someone submits an idea that you already have and plan to use, you don’t want to be sued after rejecting the submission.
This area of law doesn’t just affect publishing and the entertainment industry. Copyright infringement and idea theft can be an issue in any business. Works such as architectural drawings or plans, as well as photographs, are protectable, as well. Whether you have an idea or a work that you want to protect, or you are in a business that deals with others submitting their ideas, taking precautions ahead of time can prevent a lawsuit down the road.
If you are wondering whether you have a lawsuit for copyright infringement or for breach of contract, feel free to contact us. We can help you figure out what step to take next, and refer you to an experienced attorney if you need one. All calls and e-mails are free and completely confidential.