Does the claim that defendants stole the idea or concept you pitched only sound in copyright law or can you also proceed on an implied contract claim? In a very recent en banc decision, the 9th U.S. Circuit Court of Appeals resoundingly held that you can pursue both avenues. The opinion reversed a 2010 panel decision that has created some circuit conflict, and clears up any confusion about where the 9th Circuit stands on copyright preemption of idea-theft claims.
The upshot is that studios and networks will have a much harder time knocking out idea-theft contract claims at the pleading stage, so long as that claim alleges some bilateral expectation of compensation. Since every pitch normally brings with it an expectation of compensation, it appears almost impossible for copyright preemption to ever apply to these claims. Whether the levees protecting defendants from a flood of idea-theft claims have been breached is anyone’s guess.
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Jens B. Koepke
Attorney at Law
Morris Polich & Purdy LLP
213.417.5104
jkoepke@mpplaw.com
Certified Appellate Specialist, State Bar of California Board of Legal Specialization
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