Litigation Alert: Ninth Circuit Confirms Viability of “Desny” Claim Based On Promise To Pay For Use Of An Idea


On May 4, 2011, the Ninth Circuit, sitting en banc, confirmed that copyright law does not preempt implied-in-fact contract claims based on a bilateral expectation that the defendant would compensate the plaintiff for the use of his or her idea. Montz v. Pilgrim Films & Television, Inc., No. 08-56954, 2011 U.S. App. LEXIS 9099 (9th Cir. May 4, 2011). Further, it held there was no meaningful difference, for purposes of the preemption analysis, between a promise to pay for such use and a promise to enter into a partnership to share the proceeds derived from such use.

As alleged in the complaint, plaintiffs pitched their idea to the defendant for a reality television show, in which paranormal investigators traveled the country investigating paranormal activity. Their presentation included television screenplay treatments, video and other production materials. The studio defendants passed on the idea. Several years later, defendants launched a new series based on the same concept.

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