I am wondering if you can comment on this: Let's say I had some "great idea" for a story (film, TV, whatever) and I worked on it for months, perhaps a year even. I developed it and got it to a point I liked. Then, after all that, I learn about a project that was done more than 30 years ago that has a lot of the same elements. It's not exact, but the basis is extremely similar.

Now, to be clear, I had no idea this other project existed at all - and it's only by happenstance that I stumbled across it. So, LEGALLY - what do I need to do to protect the fact that I really did have the idea on my own?

Answer by Brandon Blake, Entertainment Lawyer:  

At one time I would sit and answer legal questions for hours in the evenings as legal advisor to IFP/West. Eventually my practice got too busy to keep helping in this way, but this question about independent development of an existing project came up fairly often.

I am going to run through several different ways to look at the question based on different areas of the law that apply. Some of these might seem obvious, but I do this because you did not provide the name of the property. Years ago I spent about a half hour explaining these same points to an eager young filmmaker who took a lot of notes. At the end of his half hour I finally asked him what property he was talking about, since he did not offer it earlier. His answer: Superman!

The first area of the law that you should consider is trademark. While copyright is an important and relevant question, many filmmakers do not know that trademarks apply to many different well-known characters. So many famous characters, whether they are from comic books, cartoons, or even live-action films can and are trademarked. Trademark law does not deal at all with authorship or ideas versus tangible expression. The sole question is whether a trademark or servicemark is a source identifier and whether the infringing work would create consumer confusion. So a man in tights with an “S” on his chest is going to be a problem, no matter what.

The second area of the law that is relevant would be the right of privacy and the right of publicity. If this work unintentionally copies or repeats elements of a real life story there may be a problem, even if there is no copyright infringement. That is the reason why clients will perform a script clearance on a project after the script has been finished. If a film that is absolutely fictional accidentally uses names or characters that are the same or similar to real life people and their stories, there can still be liability, even if the work was truly fictional. Now during trial it might be proved that you never had any relationship or knowledge of the real people involved, but by the time you have reached trial you or the distributor may have already spent hundreds-of-thousands of dollars defending what could be a frivolous suit. So filmmakers and distributors do what they can to avoid any unintentional copying of real life stories, too.

Finally, copyright will of course also be an important consideration. Again, during a copyright infringement trial, access to the infringed work is one of the elements of the test for copyright infringement. However, the access test would typically be applied after the film was released to the general public and a lawsuit had been brought. By that point, by your own admission, you would have had access to the work. Moreover, because proving or disproving real access is difficult (Can you show you just came out of a cryogenic freezer? And if so, for how long were you in?) courts generally look at whether the defendant could have theoretically accessed the work. For an unpublished work with a claim of infringement, that means showing that this unpublished work had somehow been submitted to or otherwise obtained by the producer. I once had a would-be client suggest that a producer mounted hidden cameras throughout his house. Needless to say, I did not take the case.

But when it comes to a published work, such as a feature film that has been distributed, a court would generally assume that access was possible and would not stay up late at night considering whether you had bought a ticket for this film or perhaps a different one on the weekend in question.

So the practical answer is that a work that was independently developed but ends up being similar to an existing, published work is probably going to be a candidate for litigation, and the technicalities of the Copyright Act will not protect the producer. That might seem unfair, and I happen to personally agree that copyright law is overbearing and shrinking or killing parts of the American film and entertainment industry, but producers need to know the law first. Then maybe you can join with others to help make changes. 

I have been representing film and television producers for over 16 years with the law firm of BLAKE & WANG P.A. ( Feel free to contact us for a quote.