04 June 2010

The Ghost of Show Formats Past

In some ways, the entire fanfic wank merely raises questions related to the "idea v. expression" problem. This is not necessarily limited to copyright law... but sometimes lawyers screw up and make it seem that way.

Yesterday, the Ninth Circuit decided a matter that epitomizes this problem. In Montz v. Pilgrim Films & Television, Inc., No. 08–56954 (PDF), the Court describes the dispute like this:

In November 2006, plaintiffs Larry Montz, a parapsychologist, and Daena Smoller, a publicist, filed a complaint in federal district court. They claimed that in 1981, Montz conceived of the concept for a new reality television program featuring a team of “paranormal investigators.” As allegedly envisioned by Montz, each hour-long episode would follow the team’s members to a different real-world location, where they would use magnetometers, infrared cameras, and other devices to investigate (and occasionally debunk) reports of paranormal activity.

The complaint alleges that between 1996 and 2003, the plaintiffs presented screenplays, videos, and other materials relating to their proposed show to representatives of NBC Universal, Inc., and the Sci-Fi Channel (now the Syfy Channel), “for the express purpose of offering to partner … in the production, broadcast and distribution of the Concept.” The representatives were allegedly not interested in the concept for the show. According to the complaint, however, NBC Universal subsequently partnered with Craig Piligian and Pilgrim Films & Television, Inc., to produce a series on the SciFi Channel based on the plaintiffs’ materials. The show, called Ghost Hunters, stars Jason Hawes as the leader of a team of investigators who travel across the country to study paranormal activity.

The plaintiffs brought various causes of action against NBC Universal, Pilgrim Films, Piligian, Hawes, and ten unknown other defendants. The complaint alleges that the defendants engaged in unauthorized use of the plaintiffs’ materials, in violation of their exclusive rights under federal copyright law. In addition, it alleges several state-law claims, two of which are relevant here: (1) that “by producing and broadcasting” Ghost Hunters, the defendants breached an “implied agreement not to disclose, divulge or exploit the Plaintiffs’ ideas and concepts without the express consent of the Plaintiffs, and to share with the Plaintiffs … the profits and credit for their idea and concepts”; and (2) that the defendants breached the plaintiffs’ confidence “[b]y taking the Plaintiffs’ novel ideas and concepts, exploiting those ideas and concepts, and profiting therefrom to the Plaintiffs’ exclusion.”

Slip op. at 7940–41. In short, Montz alleges that Ghost Hunters infringes his copyright interests in the idea and format for the reality series he came up with, and proposed, first. The trial court then dismissed the two state-law claims, but allowed the copyright claim to continue (IMNSHO, the copyright claim is probably a loser on doctrinal grounds). Id., slip op. at 7942.

The Ninth Circuit debunked Montz's state-law claims in two steps, in the process calling into question the scope of California law (see Desny v. Wilder, 46 Cal. 2d 715 (1956)). The implied contract claim was held to be preempted by the Copyright Act, because on the particular facts and pleadings in this case it was nothing more than a copyright claim:

As this paragraph of the complaint makes clear, the plaintiffs’ expectation of profits and credit was premised on the fact that they would retain control over their work, whether in partnership with the defendants or not. The plaintiffs’ right to receive a share of the profits and credit is thus merely derivative of the rights fundamentally at issue: the plaintiffs’ exclusive rights to use and to authorize use of their work. The plaintiffs’ claim is “part and parcel of a copyright claim,” and the presence of a right to receive a share of the profits and credit does not “transform the nature of the action.”

Slip op. at 7946. The breach-of-confidence claim was preempted for similar reasons.

The complaint contends that “the Plaintiffs’ disclosure of their ideas and concepts [was] strictly confidential,” and that “[b]y taking the Plaintiffs’ novel ideas and concepts, exploiting those ideas and concepts, and profiting therefrom to the Plaintiffs’ exclusion, the Defendants breached their confidential relationship with the Plaintiffs.” Such claim simply echoes the allegations of the breach-of-implied-contract claim, which we have already deemed preempted. Indeed, the alleged breach of confidence stems from an alleged violation of the very rights contained in § 106—the exclusive rights of copyright owners to use and to authorize use of their work. Given that the plaintiffs’ breach-of-confidence claim is not qualitatively different from a copyright claim, we conclude that it was also properly dismissed.

Slip op. at 7947.1

But what does this mean, and in particular what does it mean to fanfic? In a broader sense, it appears to mean this: That Desny actions (idea theft resulting in profitable screenplays and teleplays, unique to California law) will not stand if the "idea" is drawn from a work that is properly the subject of copyright — that is, it has been fixed, and (possibly) has been registered.2 In the sense of fanfic, though, it means that — at least in the Ninth Circuit — there is going to be a much more searching examination for similarity (as in Grosso, see note 1) than was done in Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977)... which has the further disadvantage of having been decided under the 1909 Act. In short, the facts and questions of similarity, and allusion, and literary provenance, are going to matter more to fanfic if Montz survives further review. And that's not good for anyone, because the elephant in the room in Montz was counsel's failure to plead any unfair competition and/or trademark cause of action: That is, Montz does not put the whole dispute in front of the court, so the court decided only that part that was in front of it. (The resounding "well, duuuuuuuuh" from the peanut gallery is well-taken.)

  1. Whether this conclusion by Judge O'Scannlain was proper (procedurally and jurisdictionally) remains open to question, and was apparently not briefed by the parties: There appears to be Ninth Circuit precedent pointing the opposite direction, although Judge O'Scannlain goes to great lengths to (rather unsuccessfully) distinguish the contrary decision. Slip op. at 7944–45 (discussing Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004)).

    Procedurally, this may have been improper because a three-judge panel of a federal Court of Appeals cannot overrule the decision of another three-judge panel of that same Court of Appeals, even by implication. Judge O'Scannlain's opinion in Montz distinguishes Grasso by basing itself on literal analysis of the language in the pleadings, not upon fundamental differences in substance. This is improper under Fed. R. Civ. P. 8(a) and 12(b)(6), even given the Twombley/Iqbal mess that continues to play itself out. In short, Montz is ripe for rehearing en banc, so it may not manage to survive for very long.

    The jurisdictional question is much more difficult. Federal courts are not supposed to allow collateral attacks upon state-court judgments, under the Rooker-Feldman doctrine (among others). That, however, is precisely what the defense of preemption raised in this matter is. Admittedly, it is not a core attack on Desny (which may no longer be good law anyway, as its preemption scope was under the 1909 Act... which did not completely preempt state courts and law on copyright matters!); it is, however, an attack on a state-law doctrine that is not clearly and completely preempted by the Copyright Act. Unfortunately, the confused statement of facts in both the pleadings and the opinions — which do not distinguish between what Montz actually registered for copyright and what was allegedly stolen from him — make it much harder to determine whether the jurisdictional issue really exists. It appears that the parties, and the courts, decided not to go there; unfortunately, they really don't have the choice to assume jurisdiction.

  2. See my discussion of Muchnick, in particular the breaking-news analysis of the opinion from 02 March.