Can a TV show be protected?

For the independent producer, getting an idea from paper to the screen can be a real challenge. Often the idea originator will write a letter to a production house with a concept for a show. Sometimes that letter may include a brief synopsis of a proposed plot for the TV series or movie. Such a move, unless done the proper way, may spell disaster for the originator.

The first thing that comes to the mind of an independent producer, writer or director is the suggestion to his lawyer to copyright the idea. For those wishing to produce in the United States, at least, that is a bad move!

The request that an attorney copyright "the idea" clearly reflects just how widespread the misconception of the American copyright law is for most people.

It is important to note that in the U.S. the notion of copyrighting an idea goes against the purpose of the law and economy in all its aspects, including copyright, is that ideas are free for all to use.

To foster competition and progress, American law does not favor the protection of an abstract idea and only rewards those who put ideas in useful form. In fact, the U.S. courts have held that "one cannot be forever barred from using a worthwhile but unoriginal idea merely because it was once asked to be treated in confidence"!

Absent a written contract between the producer who is originating the idea and the proposed firm which will fund it, the idea must be both novel and concrete for a court to imply any type of contractual or property protection for the idea.

Even this suggestion may not be sufficient in some U.S. jurisdictions since it has been reported that some courts will not uphold even a written contract which purports to protect an idea.

The case Murray vs. National Broadcasting Company Inc., and Brandon Tartikoff, concerns the plaintiff, Nwesu S. Murray, a black man, with advanced degrees in media and law. While working for NBC as a unit manager Murray wrote a proposal in 1980, four years prior to the premier of The Cosby Show, to NBC Entertainment suggesting a TV series that would star Cosby.

The proposal, which was titled Father's Day, depicted the life of a black middle/ upper middle class family in a non-stereotypical manner. Murray argued that NBC and its vp of programming at the time, Tartikoff, wrongfully used his idea without compensation or crediting him.

The case never got to trial because it was determined that since Murray did not have any property right to the idea of The Cosby Show, there was no basis for the finding of act. The case was dismissed by the lower court on a motion for a summary judgment basis, and it was appealed to by Murray.

Due to the nature of the U.S. legal system, the scope of judicial review is narrow when an appellate court reviews such a motion. In this particular instance, the appellate court was required to determine whether, given the premise that the claims argued by Murray were all true, the lower district court could properly conclude that a trial was NOT necessary because plaintiff's idea conclusively was not novel and thus, did not merit protection.

In a 2-1 decision, the majority found that there was no question as to the lack of novelty to create a TV series that combined the formula of a situation comedy and used black Americans to portray that family in a non-stereotypical fashion.

It is important for the independent producer to realize that an idea is not typically novel if it merely represents an "adaption of existing knowledge" and of "known ingredients." Given such a situation, the courts will tend to rule that such an idea lacks "genuine novelty and invention" to the extent that it can be deemed an intellectual property right to be protected by the courts.

Even if the proposed letter or contract uses the phrase "unique, intellectual property" in describing a proposed series or movie, that in itself may not be sufficient to protect the idea. The court in the Murray case noted that although that phrase was used in the contract between NBC and the production house making The Cosby Show, it doesn't really refer to the idea stage.

Said the Court: "The Carsey-Werner contract contemplates a fully-produced television series. The contract refers to the program format, titles, set designs, theme music, stories, scripts and art work as well as the 'program' idea. Taken together, these elements no doubt would be considered original and therefore protectable as property.

"On the other hand, we think it equally apparent that the mere idea for a situation comedy about a non-stereotypical black family--whether that idea is in the hands of Murray, Carsey-Werner, NBC, or anybody else--is not novel and thus may be used with impunity."

Of course, not all judges believe in such a restricted approach. The dissenting judge in Murray acknowledged the unique nature of the entertainment, advertising and fashion industries, which "run on a fuel composed of fresh ideas and lead time."

The minority rejected the majority view that an idea is not novel because it already existed in general form. Indeed, concluded the dissenting judge, "in a market the very existence of which depends on the generation and development of ideas, it may be impossible to formulate a concept that has not previously been expressed by someone, somewhere."