9th Circuit: California Idea-Submission Claims Not Preempted by Copyright Act


The 9th Circuit giveth and the 9th Circuit taketh away. Last year, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit breathed life into copyright preemption as a defense to idea-submission claims under California law, affirming a district court’s order dismissing breach of implied-in-fact contract and breach-of-confidence claims against NBC Universal and other defendants. Montz v. Pilgrim Films, 606 F.3d 1153 (9th Cir. 2010).

On May 4, 2011, however, an en banc panel of the 9th Circuit reversed in a 7-4 decision that echoed and arguably expanded the court’s 2004 holding in Grosso v. Miramax Film (383 F.3d 965) that the Copyright Act does not preempt breach of implied-in-fact contract claims under California law. Montz v. Pilgrim Films, No. 08-56954 (en banc).

Although the opinion largely restores the state of the law that existed between 2004 and 2010 in the 9th Circuit, it may encourage production companies, networks, studios, and others to be more aggressive in obtaining submission releases, especially from individuals with limited entertainment industry experience.


Plaintiff Larry Montz had pitched NBC (and others) a concept for a reality-style television program that would follow two paranormal investigators who search for evidence of ghosts. At the pitch meeting, Montz provided scripts, videos, and other materials embodying the concept. In 2006, NBCU’s Syfy network launched “Ghost Hunters,” a reality show produced by Pilgrim Films that featured a team of paranormal investigators.

Montz subsequently sued NBCU, Pilgrim, and others for copyright infringement, breach of implied contract, and breach of confidence. Instead of alleging a typical Desny-style implied-contract claim based on a mutual expectation that he would be compensated and credited by NBC for any use of his idea, Montz instead alleged that he expressly conditioned the disclosure of his idea on an expectation that he would partner with NBC on the production and would receive a share of any profits.

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.