The Law Of Ideas - Chapter 2 - Entertainment Law and Business - 2nd Edition

      U.S. copyright law specifically precludes the protection of ideas as a part of copyright. This has in many instances lead to the unfortunate and generally erroneous conclusion that ideas, unless they are protected as a part of patent law, are not protectable; that “ideas are as free as the air.” However, as one Justice has noted, “[T]here can be circumstances when neither air nor ideas may be acquired without cost. The diver who goes deep in the sea … knows full well that for life itself he, or someone on his behalf, must arrange for air … to be specially provided at the time and place of need.”

 

      The need to protect ideas in the entertainment industry is obvious. Creators regularly go into meetings with executives to “pitch” ideas for programs of films. Writers propose book ideas to publishers. Television producers and programmers regularly purchase the ideas for programs from other programmers. The question is how to protect creators without limiting the free flow of ideas that may be independently created.

 

       To balance these interests, the protections accorded ideas are limited, but they do exist. Protection arises under a number of differing legal theories that, unfortunately, vary according to the jurisdiction in which enforcement is sought.

 

      Most commentators categorize the protection of ideas in one of two ways. One way categorizes protections as arising under theories of contract or property law. The second identifies three general theories of protection: contracts, property, and misappropriation. It should be noted that both groups of commentators classify quasi-contracts or contracts in law as arising under the law of contracts. It is submitted that, for reasons that will be seen, a better classification system is one that divides protection between express and impliedin- fact contracts, on the one hand, and fair practices protections on the other. While the label misappropriation may accurately describe this later category of protection, misappropriation is often thought of in terms of a specific tort, whereas a variety of causes of action can be pleaded and categorized under the broader and less defined label of fair practices.

Jay Shanker, JD is Of Counsel to McAfee & Taft and a veteran entertainment industry attorney whose practice encompasses a wide array of film, television, theatre, music, new media, fine arts and publishing transactions for individual and corporate clients (including studios and television networks) in the United States and abroad. His clients and their projects have over the years received prestigious award recognition in nearly every major creative category, including Oscar, Emmy, Grammy and Clio nominations and awards. A graduate of Yale and the NYU School of Law, Mr. Shanker has practiced law in Los Angeles since 1981, and now maintains offices in both Los Angeles and Oklahoma City. Over the years, he has lectured on entertainment industry matters at UCLA, USC and the American Film Institute, and in the Fall of 2005 taught entertainment law as an adjunct professor at the law schools of both the University of Oklahoma and Oklahoma City University.

Mr. Shanker's business affairs and legal expertise extends to the development, production and distribution of television and motion picture programming (including international co-productions), recorded music projects, live stage and events, book publishing, online and interactive media, and fine arts representation.

During his career, Mr. Shanker has represented public, private and not-for-profit companies, along with individual producers, directors, writers, actors, musical artists, industry executives and entrepreneurs. His individual clients have over the years garnered prestigious international awards in every major creative media, including Oscar, Emmy, Grammy and Clio award recognition.

Mr. Shanker was also editor of “Law and the Television of the ‘80s,” published by Oceana in 1982, and a contributing editor for “Entertainment Industry Contracts”, first published by Matthew Bender in 1986. He currently serves as an adjunct professor of law at both the University of Oklahoma and Oklahoma City University, and has lectured on entertainment industry legal matters at UCLA, USC and the American Film Institute (“AFI”) in Los Angeles and New York. Jay has also served on the advisory committee of the AFI’s Third Decade Council and was a founding member of the Academy of Interactive Arts and Science’s Board of Governors.

David E. Guinn, JD, PhD has over twenty years experience in the entertainment industry. He started his career working in the theatre, as a designer, director, and manager, working in stock, regional theatre, Off-Broadway, and On Broadway. While acquiring his law degree, he spent three years working at the William Morris Agency in their business department before moving into private practice. He has represented clients in all fields of entertainment, including publishing, music, and motion pictures. He has written extensively in the field, including two volumes on the international collective administration of copyrights and neighboring rights.

Harold Orenstein: The late Mr. Orenstein was a doyen of the entertainment field, starting his career representing one of the major theatrical composer-writers in the 1950s, and continuing as a lawyer for many of the biggest music performers of the 1960s and 1970s (particularly among members of the British invasion) and eventually representing major composers and performers of World and Minimalist music. He also represented many prominent music publishers, including Nashville and theatrical publishers.