Hope you enjoyed part 2 of our series on Idea Theft, welcome to Part 3. Picasso was known to say: “Good artists create, great artists steal.” At least he admitted it!
When someone takes your project and develops it without you, you feel blindsided. Eventually, you seek answers so you track down the imposter. Usually, they ignore you, hoping you go away. Eventually, at most, you get lip service.
If you don’t go away, the correspondence grows more arrogant, aggressive and ultimately abusive, with lawyers threatening you for having the audacity to say that you would eventually share this experience publicly to help those who have suffered the same outcome, and better educate others to better protect themselves. Asking a writer not to write about an experience is akin to asking Taylor Swift not to write a song about heartbreak. Be careful what you sow.
When Diplomacy Fails
If someone gives you the courtesy and privilege in private communications and you ignore, gaslight then threaten them, you’re pushing them to go public. Why would a victim give anyone the courtesy of discretion then. In fact, if the alleged idea thief is proud of their actions, then having the public knowing of it should not be a problem. Right? Well, not so fast.
The Many Ways People Are Intimidated to Shut Up
For one, when you have a creative project and someone develops it without you, it’s embarrassing. As the Bernie Madoff fraud demonstrated, even the wealthiest and most successful people tend to keep quiet when they are “ripped off.”
Threat of Defamation Lawsuit
Before and during his presidency, Donald Trump threatened many people with defamation but rarely followed through. One reason is that a claimant effectively opens themselves up to Discovery (something we will expand on in a follow-up post in this Series). While the truth is an absolute defence against defamation (and thankfully, the truth always comes out), powerful people who may have built up their IMDB resumes through idea theft may have a lot to lose were the truth to come out, so even if they fail to prevail at the merits stage of a defamation lawsuit, they may nonetheless threaten to file a lawsuit to shut you up.
At this point I would reiterate that this is all for informational and entertainment purposes; please consult a lawyer with both the right domain expertise and practice experience in your jurisdiction, as laws differ. For what it’s worth, I live and work in Montreal, Quebec, Canada, home to a relatively active production industry but a whole continent away from the capital of the entertainment and media business – aka showbiz – Los Angeles, California.
It’s important to understand, then, how such concepts apply in different jurisdictions (we’ll expand on this in a later post).
Quebec’s law is based on the Civil code, whereas most places in North America are based in Common law. In Quebec, the defences to defamation are a bit different. A defendant commits a “fault” (or wrongful act) when he or she communicates information harmful to a plaintiff’s reputation either maliciously or negligently. Importantly, this means that a defendant may be liable for communicating unfavourable but otherwise true statements without a valid reason for doing so.
Now of course, if someone allegedly runs with your project and excludes you (i.e. does not honor the “implied contract” – more on this later in the Series), you may have a valid reason for speaking publicly and will likely prevail at the merits, but
i) the truth in of itself may not set you free, and
ii) seeking a Motion to Dismiss (or Summary Judgment in Common law) may be more challenging.
Accordingly, justification does not offer a complete defence to a defamation claim in Quebec, but rather the fact that a statement was true informs the analysis of whether the defendant acted reasonably or committed a wrongful act.
Think about it: if someone is unethical and deceitful enough to do such a thing to you in the first place, you can do the arithmetic to assess whether they may file a defamation lawsuit – no matter how frivolous it may be.
Ironically, if the person/party you allege committed idea theft files a lawsuit for defamation, then you are more protected to discuss the matter, as court filings are in the public domain. It a big game of cat and mouse, to some extent. Again, consult a lawyer before you go hysterical on social media!
Ultimately, the threat of you publicizing the alleged idea theft may be more powerful than you actually spilling the beans. It all depends on what your objective is: credit, compensation, constructive creative and/or commercial involvement.
Risk of Tortious Interference
The tort of intentional interference with contractual relations can be found when someone, without legal justification, prevents another party from performing their contractual obligations with a third party. There are some common defences to tortious interference, which include:
- The defendant was unaware that a contract existed between the plaintiff and third party.
- No contract was in effect at the time of the defendant’s alleged improper conduct.
- A breach of contract did not occur.
- A breach would have occurred regardless of the defendant’s conduct.
- The defendant did not intend for the conduct to interfere with a contract.
- There was a legal justification or privilege for the defendant’s action.
But again, the mere threat thereof could be enough to scare someone living paycheck-to-paycheck from reaching out to the network or streaming platform who would buy a show that one may have originally conceived of.
Accusations of Extortion and Blackmail
If someone steals your idea and you contact them and threaten to go public if they do not compensate or credit you, you have a legitimate complaint but the fine line between a valid beef and extorting can be dicey if you let your emotions take control of you. Again, this is an area to consult a lawyer.
Fear of Retaliation
Hollywood is an industry built on air: intangible ideas, fluid relationships, shifting power dynamics.
It’s an alchemy of the Sins and Virtues. On the one hand, I understand that no idea is truly 100% original and all creative industries are rooted in inspiration. Picasso was known to say: “Good artists create, great artists steal.”
But on the other hand, Hollywood is driven at the same time by both greed and fear, meaning that people are more prone to leave others out instead of extending the table.
Jeff Grosso was a writer featured in Today.com’s article on this phenomenon and noted:
“It’s a small group of people that have all the juice, and if you’re not in that crowd, you’re really at their mercy. There’s a real lack of moral compass on the issue in Hollywood. And there’s an ego-driven arrogance about it, like how dare you challenge this producer, this director, this studio?”
In the next part, we’ll look at how people expose themselves to Idea Theft… before looking at the fabric and nature of storytelling and screenwriting, before diving into the precedents, discovery/depositions, and much more. Meanwhile, if you want to share your experience or contact me, you can do so using this form.