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.

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