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Unpublished Paper
Dog-Eat-Dog: The Paradox Between The Ninth Circuit’s Treatment of Idea Submission Cases and the Harsh Reality of Show Business
ExpressO (2012)
  • Brigid S. McNally

Hollywood is much akin to an oligarchy, with most of its power concentrated in a few top studios. The creative sides of the entertainment industry—namely screenwriters— have become the unfortunate victims of this power imbalance. In an effort to recognize the woes of these screenwriters and mitigate the unfair nature of this unequal bargaining power, the Ninth Circuit has sought to safeguard the interests of screenwriters through its interpretation of implied-in-fact contracts. Despite the 1976 revisions to the Copyright Act, which now afford protection to these screenwriters, the Ninth Circuit continues to reaffirm the usage of implied-in-fact “Desny” claims as an answer to plaintiff-screenwriters’ idea submission cases. While the judiciary’s intent is noble, its approach is not functional for the following reasons: (1) it creates a circuit split with the approach taken by the Second Circuit; (2) breach of contract does not afford the appropriate remedies for the “idea-theft” suffered by the screenwriters; (3) the standard employed in Desny claims is unreasonably low; (4) this treatment will, inevitably, reaffirm the necessity of “connections” in the business for screenwriters to find success; (5) it allows for frivolous lawsuits and forum-shopping; (6) the court is contravening legislative intent. Employing the applicable copyright law to idea submission cases would serve as a cure-all for these problems. This would require the United States Supreme Court to definitively end the implied-in-fact contract approach to idea submission cases.

  • copyright,
  • implied-in-fact contracts,
  • Ninth Circuit,
  • Second Circuit,
  • entertainment,
  • screenwriter,
  • circuit split,
  • idea submission
Publication Date
February 5, 2012
Citation Information
Brigid S. McNally. "Dog-Eat-Dog: The Paradox Between The Ninth Circuit’s Treatment of Idea Submission Cases and the Harsh Reality of Show Business" ExpressO (2012)
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