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Larry Montz is a ‘parapsychologist’ who came up with the idea of a TV show following him and his crew going to haunted locations and looking for paranormal activity. From 1996-2003, Montz and his publicist went around Hollywood pitching the idea for the show to various studios, including NBC and Sci-Fi channel, all of whom passed on the show. In 2006, Montz brought suit in federal court against Sci-Fi and NBC Universal over Sci-Fi’s ‘Ghost Hunters’ (which NBC partnered on) claiming the studios stole his idea.

Here’s where things start getting a little technical. The district court judge threw out Montz’s case (Montz v. Pilgrim). The reasoning, in a nutshell, is that Montz had an idea for a show, but ideas themselves are not copyrightable. An example would be, an alien from another planet that has super powers and flies around is an idea for a comic, but not enough to get copyright protection. An alien who goes by Clark Kent, works at the Daily Planet, has a girlfriend named Lois Lane, wears a blue jumpsuit with a red cape and yellow ‘S’ on his chest, and is known as Superman, *is* copyrightable. So, an idea for a ‘reality’ show with parapsychologists that run around looking for paranormal activity is too vague of an idea to get copyright protection. Montz argued that he was actually suing under an implied contract theory: there was an understanding that he presented his idea to the producers so if they used it he would get some compensation. However, the district court disagreed, claiming that the ‘implied contract’ theory was really subsumed under and preempted by the Copyright Act. In other words, the court said essentially ‘call it a California ‘implied contract’ claim all you want, Mr. Montz, it is really just a federal copyright claim and a bad one at that.’

The next step for Montz was to appeal that decision to the Ninth Circuit Court of Appeals, which hears appeals of federal decisions in the western states, including California. Generally, appeals are brought on questions of law, not of fact. Thus, the technical question presented was whether a state implied contract theory would actually be preempted by the Copyright Act. The Ninth sided with Montz, following earlier precedent that says California recognizes an implied contract cause of action when writers submit material to producers with the expectation on getting paid if it is used. The Ninth also stated the policy argument of giving writers protection in a ‘dog-eat-dog business.’

So, now the studios are petitioning the Supreme Court for a writ of certiori, which just means they are asking SCOTUS to hear the case. The Supreme Court is not required to hear most cases and, in fact, most petitions are denied. The petition can be found at: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/Petition-11-143.pdf However, one thing that often gets the Supremes attention is when there is a split in the circuits. Here, the 2nd and 4th Circuits have taken contrary positions to the 9th, finding that such implied contracts are preempted by the Copyright Act. The studios are also arguing that such a ruling would make it even more difficult for unknown writers to get in the door, because studios would be even warier of hearing from new writers with the fear of entering into a contract with them.

Studios are often in lawsuits with writers claiming that a movie or show came from their ideas (see Alien v. Predator story). As such, it is very difficult for unknown writers with unsolicited manuscripts to get an audience with a producer, largely for fear that a suit will come in the future. At the same time, a writer might feel it is of limited utility to get a meeting with a producer if there is free license for the producer to pillage their ideas and not pay them. Expect a lot of attention if the Supreme Court takes this case, as it does not often hear copyright cases and this one would have lots of ramifications, whichever way it is decided.


About Nerds in Court

John G. Nowakowski, Esq. (LLMT), is a graduate of the University of San Diego School of Law, and is licensed to practice law in California and Nevada. Christina R. Evola, Esq. is a recent graduate of the University of San Diego School of Law where her studies focused on intellectual property, antitrust, and media law. She is a lifelong gamer and avid cosplayer. DISCLAIMER: ‘Nerds in Court’ is for entertainment purposes only. Nothing should be construed as legal advice, or any advice for that matter, and no attorney-client relationship is formed by reading these posts. Do not consider information provided here as a substitute for obtaining legal advice from a qualified, licensed attorney in your state.


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