Too Little Copyright

Sometimes, though, a little copyright goes a long way. Take Grosso v. Miramax (pdf link to the court’s opinion), where the Ninth Circuit Court of Appeals ruled last month that a screenwriter who sent an unsolicited script to Miramax could sue Miramax for breach of an implied contract — a state law claim — after portions of the script turned up in Rounders. This is so, it turns out, even though the Ninth Circuit ruled that the screenwriter’s copyright law was rightly rejected on summary judgment:

As the district court carefully and correctly explained, the two works are not substantially similar. The works do not have substantially similar genre, mood, and pace; their themes, settings, and characters are different; their plots and sequences of events are not parallel. Both works have poker settings but the only similarities in dialogue between the two works come from the use of common, unprotectable poker jargon.

Alas, despite the copyright finding, the court concluded that the screenwriter could still sue for “reasonable compensation” for use of his screenplay. Is the state law claim preempted? No. Ouch.

The Times write-up on the case claims that the result gives new power to screenwriters and should leave studios nervous. I think (at least I hope) that’s wrong. First, even in this case, the plaintiff’s contract case is a clear loser on the next round of summary judgment motions. If the script and the film aren’t substantially similar, then there was no deal — Miramax shouldn’t be expected to pay the writer if the writer didn’t give anything of value to Miramax. There’s no consideration, in contract-speak. One of the virtues of the preemption doctrine in copyright is that it keeps spurious claims like this from taking up the court’s time and the defendants’ legal fees. But on we go.

More practically speaking, it’s hard for me to see how this is a win for screenwriters. Any competent production company stopped opening unsolicited packages a long, long time ago out of fear of this kind of suit. Now executives will run, not walk, from anyone who even looks like a writer. Exactly how does this make writers better off?