ds-idea_Just about everyone at one time or another has come up with an idea for a movie, TV show, product or service.  They’ve seen or are aware of how much money can be made in such endeavors, figure their ideas are as good as anyone else’s, if not better, and decide to take a shot at making their dreams of fame and/or fortune a reality (or maybe a reality show).

But, there are great dangers to you and your submission unless you know the protections that are available and how to use them.  Without protection, the consequences can be life altering and very expensive.  One can contract the dreaded STD — Submission Theft Disorder.  This is characterized by such symptoms as: seeing your idea appear on store shelves, on television or in movie theatres; not seeing any money, credit or attribution for your idea being brought to the masses; and in severe cases, homicidal or suicidal impulses.  And, like with most STDs, there is no known cure.  It’s too late once you contract it to do much about it.

But, with good legal advice and effective planning, a lot can be done to protect your idea before and during submission, avoiding STD and the burning feeling of seeing someone else take and benefit from your brilliance, forethought, hard work and creativity.

Write Down or Record Your Idea.  The first step before submitting anything is to commit your idea to a tangible medium from the very beginning.  These are such things as treatments or synopses for writings involving ideas for television shows, books or motion pictures, demo or sizzle reels for audiovisual work ideas and business plans, summaries and mock-ups for product and services ideas.  Be as specific and detailed as possible regarding characters, story lines, plot points, locations, functionality, look and feel, depending on the nature of that version.  For a competition reality show idea, this would include how yours is structured and executed.  It’s almost impossible to protect an ambiguous idea.  It’s far easier to prove infringement if the alleged infringer has taken several of your unique idea elements, as opposed to just taking the broad idea itself.

Putting your idea in a tangible medium serves several purposes.  One is it forces you to crystallize and be detailed with your version of an idea.

Copyright.  It also allows you to then claim copyright in that version.  While copyright law doesn’t protect ideas, it can protect any number of versions of an idea, once it’s in a tangible medium.  It also protects the bundle of rights that goes with the version.  So, the second step is to register your written or recorded version with the U.S. Copyright Office.  Registration isn’t necessary for a work to be “copyrighted”.  Copyright attaches to an original work upon creation.  But registration also serves several valuable purposes.

One is that the Copyright Office is the recognized central depository for copyrightable works.  This is important because in the case of very similar works that were coincidentally created without the creator of one not knowing about or intentionally copying the elements of the other, the first in time is usually held to own the work.  Another is that registration is a prerequisite to filing a copyright infringement suit and the non-infringing party’s right to claim certain statutory damages and attorneys’ fees from the infringers – strong disincentives to infringement.

The third step is to place a conspicuous copyright notice on your submission materials before disseminating any copies.  lt lets others know that you’re claiming them as yours.  A few examples of good locations for this notice would be at the bottom of the title page on a writing, at the very beginning of an audiovisual work and on the landing page of a website or app from which a work is perceivable or accessible.  One proper copyright notice consists of a “c” in a circle, the date of creation and the person or company claiming ownership.  Please refer to mine at the end of this blog for an example.

Submission I Confidentiality AgreementsNow you’re almost ready to submit your materials to those third parties who can make your dreams come true.  However, sending out your materials without taking advantage of the additional protections afforded by state laws, some of which can protect ideas, can leave holes in your protection.  For example, California law uses various express and implied contract theories to protect ideas.  I believe an ideal way of using both available federal and state law protection is to get the materials recipient to sign before submission, a non-disclosure/ confidentiality agreement (“NDA”) that is written to take advantages of these laws. [1]

Certain provisions should appear in an NDA to do this.  A few of the provisions I write in NDAs include:

  • A clear statement or definition of the materials being submitted.
  • The specific limited purpose for which they’re being submitted.
  • A strict, detailed confidentiality provision.
  • A specific time limit to evaluate the materials, with the right to unilaterally and for any reason terminate the NDA upon written notice to the recipient.
  • All submitted materials and copies and derivatives made of them are returned to the submitter upon NDA termination.
  • That the submitter expects to receive money or other compensation, credit and/or other attribution for any use of any of the submission materials by the recipient or anyone else.

Like your submission materials themselves, the more specificity in an NDA, the better.  If possible, the NDA should be mutual.  This may give the recipient more incentive to accept and sign it.

But what if you can’t get the recipient to agree to sign one? *  If that’s the case, you should send “C.Y.A.” (no, it means “convey your anticipation”) correspondence.

C.Y.A Correspondence.  I vastly prefer emails or texts for this purpose.  Recipients can claim they never received letters.  I also believe that sending letters by registered mail or other confirmed delivery methods raises red flags and can cause them to be rejected.  Emails and texts, on the other hand, get to the recipient and you have almost indisputable proof of delivery, unless it winds up in the email “Spam” folder.  This is something you can usually avoid, since you obviously need the recipient’s email address to send the materials, follow-up and correspond.

The basic purpose of this CYA correspondence is to confirm as much as possible having to do with the submission.  But, it’s very important the tone be friendly, conversational and innocuous.  For example, if you’re allowed to submit the materials, it should be accompanied by a cover email (or if the materials can’t be emailed, by a letter when the materials are delivered or sent).  A few examples of what the correspondence should say are:

  • How happy you are to be able to have this opportunity to submit.
  • A list of the materials being submitted.
  • The purpose for which it’s being submitted (for example, for evaluation of a script or treatment for a possible reality TV series);
  • To contact you to let you know what they think of the materials, if they have any questions or want to discuss it with you further;
  • Perhaps most important — if they do want to discuss it further, tell them you’re happy to do so and as part of that, you would of course expect and discuss compensation payable to you in the event the recipient wants to make any use of the materials.

If the recipient wants to have a meeting or telephone conference about the materials, either initially or after submission, confirm it in writing.  It could be something as simple as stating that you “just want to confirm the meeting of (whatever date and time) at (whatever location) and that you look forward to meeting the recipient and discussing the materials with them”

An email should also be sent after a telephonic or in person meeting, thanking them for their time and interest and briefly summarizing what was discussed and whether any further discussions or meetings are contemplated.

A Few Final Words.  I understand the excitement of having an innovative idea for a show, movie, product or service.  I also understand the desire to plunge ahead quickly and with some abandon in the heat of this excitement.  Submitting an unprotected idea may feel like a good idea at the time.  But, having it ripped off is no better and often far worse than not submitting it at all.  By moving slower, cautiously and following the steps above, you greatly increase the odds of having a satisfying and fulfilling submission experience.

* Of course, some companies won’t accept unsolicited submissions.  Others won’t take any submissions unless the submitter signs the company’s NDA as a condition of submission. These NDAs are usually very one sided, oppressive and can even say that if they steal all or part of your submission, you can’t sue them.  Not much a submitter can do in these situations.

Just Sayin’ . . . TM

© 2016 Paul I. Menes

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