Spinner v. American Broadcasting
Filed 3/8/13 Spinner v. American Broadcasting CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
ANTHONY SPINNER,
Plaintiff and Appellant,
v.
AMERICAN BROADCASTING
COMPANIES, INC.,
Defendant and Respondent.
B239229
(Los Angeles
County
Super. Ct.
No. BC 417577)
APPEAL from
a judgment of the Superior Court
of
County, Kevin C. Brazile, Judge. Affirmed.
Susman
Godfrey, Steven G. Sklaver and Oleg Elkhunovich for Plaintiff and Appellant.
Kelley Drye
& Warren, Andrew M. White, David E. Fink, Allison S. Brehm
and Joshua M. Keesan for Defendant and Respondent.
* * * * * *
Anthony Spinner brings this “idea submission†lawsuit
against American Broadcasting Company, Inc. (ABC) for ABC’s alleged use of his
ideas in creating and developing the hit television series LOST. Spinner submitted a
script entitled “L.O.S.T.†to ABC in 1977, while ABC’s LOST was created and developed in 2003 and 2004.
statement of facts
ABC in 1977
Spinner is a
television producer, writer, and former studio executive in Los
Angeles. He was
nominated for an Emmy for Outstanding Drama Series as the executive producer of
the series Baretta, an ABC television
show. Spinner is a former creative vice
president at Fox Television.
Around
1976, Sid and Marty Krofft Television Productions, Inc. (SMK) approached
Spinner through his agents because SMK and ABC were interested in developing a
television pilot with Spinner. During a
meeting with SMK, Spinner explained that he “had always thought about doing
people stranded in impossible circumstances, not contemporary, not like a
hundred stories like that had been told, and how they would survive and the
strange adventures they would meet there.â€
The SMK representatives liked the idea.
In December 1976, ABC entered into an agreement with SMK to retain
Spinner to write a two-hour pilot tentatively entitled “L.O.S.T.†SMK was to pay Spinner $30,000 for his
services and invoice ABC for that amount.
SMK and Spinner also entered into an agreement for Spinner to write “a
proposed two hour television motion picture presently entitled L.O.S.T.â€
Spinner
created a three-page outline of “Characters and Conflicts†for the pilot and a
10-page synopsis. Richard Heller of SMK
delivered these documents to two executives at ABC, Cliff Alsberg and Ken
Gross. At the time, Alsberg was vice
president of Drama Development at ABC, and Gross was director of Drama
Development. Spinner met with Heller,
Alsberg, and Gross at ABC, where they gave him some thoughts and
suggestions. He then wrote a 121-page
script entitled “Lost.†He met with
Heller, Alsberg, and Gross again to discuss the script. They provided some notes on the script, one
major point being that they wanted “more awe and wonderment.†Spinner revised the script in response to
Alsberg’s and Gross’s notes and submitted the second draft to ABC around March
or April 1977 (the 1977 Script). Heller
told Spinner that Alsberg and Gross were very pleased with the 1977 Script.
The 1977
Script is about a group of eight survivors connected to the U.S. Olympic team
whose plane crash-lands deep in the Himalayas.
The plane leaves from the Tokyo airport hours after an international
competition. Five of the survivors are
Olympic-bound athletes, one is the team physician, one is a television
reporter, and one is the pilot. Among
the athletes is a former military man who assumes leadership of the group, a
spoiled rich girl with a drug addiction, and a strong-willed man who shows a
temper and challenges the former military man’s leadership of the group. The plane’s radio is smashed in the
crash. The survivors must seek shelter,
because with the snow and wind, they are certain to freeze to death at the
crash site. One survivor goes through a
craggy tunnel in the mountainside and comes out the other side in a prehistoric
world that “looks like a chunk of central Africa,†except the world is
inhabited by dinosaurs and flying reptiles.
He returns to the other survivors, who collect a few supplies from the
crash site and follow him back to the “lost world.†As they enter the new world, an avalanche
seals the tunnel behind them, cutting off their passage back to their
world. The rest of the script tells the
story of their attempt to survive in this new world, where they come up against
creatures and primitive human beings.
Sometime
after Spinner submitted the 1977 Script, ABC decided to pass on the
project. Spinner was told the project
was far too expensive for ABC to produce.
Spinner never spoke with Gross about the 1977 Script ever again, and he
never spoke with Alsberg about it again until 2005, after the television series
LOST had premiered. Alsberg left ABC in 1979, and Gross left ABC
in 1977. The television series
ABC’s
record retention schedule with an effective date of January 19, 1972,
states that it retains unclaimed scripts (scripts not returned to submitters)
permanently. ABC did not return either
draft of the 1977 Script to Spinner.
In 1991,
Spinner resubmitted his idea to ABC. He
verbally pitched the 1977 Script to Deborah Leoni, then director of Drama
Series Development at ABC. Leoni
suggested that he needed a new title and new spin on the project in order for
her to be able to sell it to ABC.
Spinner knew he had to change the project to such an extent that it would
not be recognized as the 1977 Script. He
then created a new eight-page treatment telling a futuristic story that takes
place in 2060 (the Outer Space Treatment).
A spaceship bound for the planet “Lambar†crash lands somewhere “in the
vast Jadan galaxy†after it is ripped off course by a cosmic storm. Six human survivors of the crash and one
android member of the crew struggle to survive in their new environment while
faced with never-before-seen creatures, alien races, primitives, and other
dangers. ABC passed on the Outer Space
Treatment. In 1994, Spinner resubmitted
the same treatment to ABC, this time to an executive named Greer Shephard, who
had taken over Leoni’s position, as well as to Leoni. ABC passed again on the Outer Space Treatment
in 1994. In response to ABC’s separate
statement of undisputed material facts, Spinner admitted that the Outer Space
Treatment and the LOST television
show are not substantially similar in either plot, sequence of events, themes,
characters, dialogue, mood, setting, or pace.
Shephard
left ABC in 1997. Leoni left ABC in
1995. Leoni and Shephard were not
involved in the creation, development, or production of the
Spinner or any of Spinner’s writings and ideas with the creators of
Abrams, and Jeffrey Lieber).
Spinner has
testified unequivocally that he had no contact with the creators of
Specifically, his deposition testimony was as follows:
“Q. . . . [¶]
You don’t contend that you’ve ever had any contact with anybody who
participated in the production or creation of the ‘LOST’ television show, do
you?
“A. Never
spoke to one of them, never met any of them.
“Q. And
you don’t contend that you ever transmitted any of the materials surrounding
the 1977 Script to anybody involved in the production of ‘LOST,’ do you?
“A. I
never did.
“Q. And
you don’t contend that you ever submitted any of the materials that comprise
the Outer Space Treatment to anybody involved in the production or creation of
the television program ‘LOST,’ do you?
“A. I
do not contend that.
“Q. In
fact, as far as you’re aware, you’ve never had any contact with anybody
involved in the production or creation of ‘LOST’ at all; isn’t that right?
“A. That’s right.â€
Braun has
worked in the entertainment industry for more than 25 years. He first started working for ABC
Entertainment Television Group in July 1999.
He was chairman of ABC Entertainment Television Group from January 2002
to April 2004. Braun does not know
Spinner and has never communicated in any manner with Spinner. Prior to this lawsuit, he had never heard of
Spinner. At no time while he was
involved with LOST did anyone ever
mention to him any script or treatment by Spinner, nor did anyone suggest to
him that they knew anything about the contents of a script or treatment by
Spinner. Braun has never read Spinner’s
1977 Script or Outer Space Treatment. He
has never spoken with or received any materials from Leoni, Alsberg, Gross, or
Heller. He has never spoken with or
received any materials from Shephard regarding any of Spinner’s work or ideas.
Around late
December 2002, early January 2003, Braun was vacationing in Hawaii. While sitting on the beach in Hawaii, he came
up with the concept for LOST. The motion picture Cast Away (20th Century
Fox 2000), about a survivor on a desert island, was on his mind. He thought about the concept of survivors of
a crash landing on a deserted island. He
also thought about the success of the unscripted reality television show
concepts, Survivor and Cast Away,
together. He had the title “Lost†in his
head from a 2001 failed reality television show of the same title.
In July
2003, Braun was at a company retreat and pitched the idea of “
other executives at a brainstorming session.
He compared his idea to Cast Away, Survivor,
and Gilligan’s Island, saying the show
could have the inventiveness of Gilligan’s
Island with a Lord of the Flies (Columbia Pictures 1990) element. He pitched the show as a dramatization of how
the “castaways†survive on the island, and they never make it off the
island. The whole brainstorming session,
including Braun’s pitch, was transcribed by a reporting service.
Lieber, a
writer under contract with Spelling Entertainment at the time, was eventually
assigned to work on a draft pilot for Braun’s idea. Lieber does not know Spinner and has never
communicated in any manner with Spinner.
Prior to this lawsuit, he had never heard of Spinner. At no time while he was involved with
script or treatment by Spinner, nor did anyone suggest to him that they knew
anything about the contents of a script or treatment by Spinner. He has never read Spinner’s 1977 Script or
Outer Space Treatment. Prior to and
during the time he was working on LOST,
he did not have access to scripts submitted by other writers to ABC or scripts
stored in ABC’s archives. Lieber has
never spoken with or received any materials from Leoni, Alsberg, Gross, or
Heller. He has never spoken with or received
any materials from Shephard regarding any of Spinner’s work or ideas.
Around
August 2003, Lieber began drafting an outline for Braun’s proposed
His vision for the project was inspired by the novel
characterizes as “a realistic portrayal of a group of survivors figuring out
how to govern and rebuild a society following a disaster.†He completed a general outline on or around
September 23, 2003. This first outline
included core elements such as (1) a small cast of plane crash survivors are
stranded on a seemingly deserted tropical island, (2) the use of a plane
fuselage as a setting, (3) competition for leadership roles among the
survivors, (4) debate over who to save with limited medical supplies, and (5)
mystery regarding the main characters’ backgrounds. In addition, his outline included a group of
core characters such as (1) a pregnant woman, (2) an older gentleman who is
calm and collected, (3) a con man, (4) a doctor, (5) a drug addict, (6) a
military officer, and (7) a spoiled rich girl.
After
completing several more drafts of the outline and several drafts of the pilot
script, Lieber submitted a revised draft of the script entitled “Nowhere†to
ABC on or about December 23, 2003.
Around a week later, he learned that Braun had issues with the script,
and approximately a week after that, he submitted another revised version of
the script to ABC. Shortly after that
submission, Lieber learned that Braun was looking for something different and
had decided to work with a different writer.
Braun turned
to Abrams when he was not satisfied with Lieber’s work. Abrams has been a writer, producer, and
director for television and film for over 20 years. Abrams does not know Spinner and has never
communicated in any manner with Spinner.
Prior to this lawsuit, he had never heard of Spinner. At no time while he was involved with
script or treatment by Spinner, nor did anyone suggest to him that they knew
anything about the contents of a script or treatment by Spinner. He has never read Spinner’s 1977 Script or
Outer Space Treatment. Prior to and
during the time he was working on LOST,
he did not have access to scripts submitted by other writers to ABC or scripts
stored in ABC’s archives, with the exception of Lieber’s script. He did not read Lieber’s script,
however. Abrams has never spoken with or
received any materials from Leoni, Alsberg, Gross, or Heller. He has never spoken with or received any
materials from Shephard regarding any of Spinner’s work or ideas.
In early
January 2004, Abrams received a call from Braun regarding his idea for a show
about people who survived a plane crash on an island. Abrams wanted to work on it but knew he would
need someone to help him write it because of his busy schedule – he was running
another television series at the time, Alias. On or about January 12, 2004, Abrams attended
a meeting to flesh out ideas for the new show.
There, he met Lindelof for the first time.
Lindelof
has been a television and film writer for over 10 years. He does not know Spinner and has never
communicated in any manner with Spinner.
Prior to this lawsuit, he had never heard of Spinner. At no time while he was involved with
script or treatment by Spinner, nor did anyone suggest to him that they knew
anything about the contents of a script or treatment by Spinner. He has never read Spinner’s 1977 Script or
Outer Space Treatment. Prior to and
during the time he was working on LOST,
he did not have access to scripts submitted by other writers to ABC or scripts
stored in ABC’s archives, with the exception of Lieber’s script, which he
read. Lindelof has never spoken with or
received any materials from Leoni, Alsberg, Gross, Heller, or Shephard.
An ABC
executive contacted Lindelof in early January 2004 and offered him the
opportunity to meet with Abrams about possibly working together on a new
show. When Lindelof and Abrams met on
January 12, they immediately connected and started sharing ideas for the show
in a rapid-fire fashion. Also present at
the meeting were two writers and a producer from Abrams’s show,
Heather Kadin, vice president of Drama, and Thom Sherman, senior vice
president, Drama Development. Lindelof’s
and Abrams’s exchange of ideas at that meeting included the following: (1) the show would be rooted in mystery such
that each character would have a mysterious background and his or her own story
to tell; (2) the island itself would be a mysterious character, a supernatural
place where strange things happened; (3) the characters’ mysterious backgrounds
would be revealed through a flashback device, focusing on one character’s story
per episode; (4) the show would begin with a man waking up on the island after
the plane crash, and the details of the crash itself would gradually be
revealed using the flashback device; and (5) characters on the show would
include other people who were on the island before the plane crash, adding to
the mystery of the island.
Lindelof drafted
six pages of notes memorializing the ideas discussed at the meeting and
circulated them by email to Abrams and the Alias
writers and producer late the night after the meeting. The document contained ideas for the “overall
conceptâ€: take Braun’s “tentpole idea ‑‑
The Survivors of a plane crash find themselves on a desolate island in the
middle of nowhere ‑‑ and give it legs.†The show would explore “the unknown,†and in
addition to the normal rigors of desolate island life, the characters would
experience ongoing mysteries. The
characters would be enigmatic as well.
The document also contained a section entitled “Characters†that set
forth some of the main “good guys†and “bad guys,†including Jack, the male
lead, who was to be intelligent, handsome, self-deprecating, and a natural born
leader, and in later documents is a doctor; Kate, the female lead and “our
heroâ€; Charlie, the antisocial “anti-hero†who is still one of the good guys,
and in later documents is a drug addict; Mike and Walt, a father and his
11-year-old son, who had never had an opportunity to bond until this trip
during which their plane crashed; Sawyer, “the heavy,†who is competent,
charismatic, and able, but shows hints of temper and violence; Djani, a
technically skilled engineer, who in later documents becomes Sayid, a former
Iraqi military officer; and Shannon, the “femme fatale†and “not your
prototypical b‑‑ch.â€
Finally, the document also contained a section entitled “Weird S‑‑t
That Might Happen in the Pilot,†including something very big moves through the
trees in the distance; a horrifying noise wakes everyone up in the middle of
the night and then abruptly stops; a “jerry-rigged†transmitter cannot transmit
because a stronger signal transmitting from somewhere else on the island is
blocking it, and the characters discover the other transmission is a distress
call in French playing on a loop and recorded many years ago (in 1983).
Time was
short if the show was going to be broadcast during the 2004 to 2005 television
season. Typically, networks would have
already selected scripts for pilots around December 2003, and principal
photography would have commenced shortly thereafter. Lindelof and Abrams were thus tasked with
drafting an outline by the end of the week.
Between January 13 and 16, 2004, Lindelof created and circulated at
least four separate versions of notes or draft outlines to Abrams and the
present at the meeting. On January 16,
2004, Lindelof sent a final version of a 21-page outline entitled “LOST†to
Kadin and Sherman at ABC. Braun also
received the outline and thought it was “brilliant.†He called Lindelof the next day and told him
ABC was going to produce the pilot based solely on the outline.
By January
19, 2004, Lindelof had created a rough cast list for the pilot and had started
creating character “sides†for actors to read when auditioning for the
show. In February 2004, while they were
working on the pilot script, Abrams and Lindelof were conducting casting sessions
for the show, and the actors they liked for certain characters influenced the
way they were writing those characters.
The evolution of the first draft of the pilot script is documented in
the record; in January and February 2004, as Lindelof finished each act of the
script and revised the acts, he sent the drafts by email to Abrams and the
draft of the pilot script on February 24, 2004, and submitted it to Braun,
Kadin, and Sherman. They revised the
script numerous times and submitted the final script on April 19, 2004. By early May 2004, they and the
that provided an overview of the show and described its general format, various
elements of the show, character biographies, and approximately 30 ideas for the
future of the show.
The pilot
for LOST premiered in two parts on
September 22 and 29, 2004. The series
ran for six seasons, with the final episode airing in 2010.
Records
Lisa
Petraglia is executive director of Legal Affairs Administration at ABC. During the period 2007 to 2011, she
supervised the searches conducted of ABC’s files for any scripts, treatments,
or other works by Spinner. ABC searched
the hard copy and electronic files of the ABC personnel involved in the
creation of LOST, as well as those
involved with Spinner’s submission of the 1977 Script and the Outer Space
Treatment. Specifically, ABC searched
the files of the Drama Development Department (including the files of Gross,
Alsberg, Leoni, Shephard, and any files relating to SMK), the files of the
former Literary Rights Department, and the files of Braun, Kadin, and Sherman,
among others. The searches did not yield
any iteration of the 1977 Script. The
searches did yield a copy of the Outer Space Treatment, found in Leoni’s files.
procedural history
Spinner
filed the operative complaint on July 10, 2009, for breach of
implied-in-fact contract against ABC and Touchstone Television Productions,
Inc. He alleges that an implied-in-fact
contract was created between him and ABC when ABC solicited the 1977 Script, he
submitted the script with the reasonable expectation of payment if ABC used it,
ABC accepted it knowing that he expected payment, and ABC used it. He further alleges that ABC had access to and
used his 1977 Script to develop and produce the television series
He asserts that he is due an ongoing royalty for ABC’s use of the ideas
in his 1977 Script.
On or
around August 31, 2011, ABC moved for summary judgment on three grounds: (1) the creators of LOST had no reasonable possibility of access to Spinner’s work; (2)
Spinner’s work; and, (3) even if there were triable issues of fact regarding access
and substantial similarity, the undisputed evidence established that ABC
independently created LOST, and
independent creation was a complete defense to the action. The court granted summary judgment in favor
of ABC and held that ABC had “negated Plaintiff’s claims by providing
sufficient evidence to establish both that it did not have access to
Plaintiff’s original 1977 script and that the script for Lost was
created independently.â€
The court
entered judgment on December 19, 2011.
Spinner filed a timely notice of appeal.
STANDARD OF REVIEW
A defendant
may move for summary judgment when it contends that an action has no
merit. (Code Civ. Proc., § 437c,
subd. (a).) The defendant has met its
burden of showing that a cause of action has no merit if it has shown that one
or more elements of the cause of action cannot be established, or that there is
a complete defense to that cause of action.
(§ 437c, subd. (p)(2).) Once
the defendant has met that burden, the burden shifts to the plaintiff to set forth
specific facts showing a triable issue of material fact. (Ibid.) The court shall grant the motion for summary
judgment if there is no triable issue as to any material fact and the moving
party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
“An issue
of fact can only be created by a conflict of evidence. It is not created by ‘speculation,
conjecture, imagination or guess work.’
[Citation.] Further, an issue of
fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’
[citation], or mere possibilities [citation].’â€
(Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190,
196-197.) A genuine issue of material
fact exists if, and only if, the evidence would allow a reasonable juror to
find the underlying fact in favor of the party opposing summary judgment. (Mammoth Mountain Ski Area v. Graham
(2006) 135 Cal.App.4th 1367, 1371.)
If the
moving party establishes through uncontroverted evidence that there is no
triable issue of material fact, “summary judgment may not be denied on grounds
of credibility or for want of cross-examination of witnesses furnishing
affidavits or declarations.†(Code Civ.
Proc., § 437c, subd. (e).) “‘In other
words, the judge generally lacks discretion to deny the motion and send the case
to trial simply to allow the opposing party to cross-examine the affiants or
otherwise test their credibility.’†(
(2007) 157 Cal.App.4th 628, 636.)
We review
the grant of summary judgment de novo, applying the same legal standard as the
trial court in determining whether any genuine issues of material fact exist or
whether the moving party is entitled to judgment as a
Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
390.) We accept as true the facts shown
by the losing party’s evidence and reasonable inferences therefrom, and we
resolve evidentiary doubts or ambiguities in the losing party’s favor. (Saelzer
v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138,
148.)
discussion
Generally,
there is no property right in an idea.
“‘The general rule of law is, that the noblest of human productions ‑‑
knowledge, truths ascertained, conceptions, and ideas ‑‑ become,
after voluntary communication to others, free as the air to common use.’†(Desny
v. Wilder (1956) 46 Cal.2d 715, 731-732 (Desny), quoting International
News Service v. Associated Press (1918) 248 U.S. 215, 250.) Nevertheless, the California Supreme Court
held in Desny, supra, at pages 733-734, that an idea can be the subject of an
express or implied contract, and its disclosure and submission can be
consideration for a promise to pay compensation. Plaintiffs may therefore have a cause of
action in contract for disclosing an idea to a defendant that uses that idea
without compensation.
In an idea
submission case such as this, to prevail on a cause of action for breach of
implied-in-fact contract, plaintiffs must show (1) they clearly conditioned the
submission of their ideas on an obligation to pay for any use of their ideas;
(2) the defendants, knowing this condition before the plaintiffs disclosed the
ideas, voluntarily accepted the submission of the ideas; and (3) the defendants
found the ideas valuable and actually
used them ‑‑ that is, the defendants based their work
substantially on the plaintiffs’ ideas, rather than on their own ideas or ideas
from other sources. (
128 Cal.App.3d 628, 646-647 & fn. 6 (Mann).)
The summary judgment motion
in this case, and thus this appeal, focuses solely on the use element. When plaintiffs do not have direct evidence
of use, they may raise an inference of use by showing the defendants had access
to their ideas and the defendants’ work is substantially similar to the
plaintiffs’ ideas. (Hollywood Screentest of
America, Inc. v. NBC Universal, Inc. (2007) 151 Cal.App.4th 631, 646 (Hollywood Screentest); Teich
v. General Mills, Inc. (1959) 170 Cal.App.2d 791, 797 (Teich).)
Even when the plaintiffs
raise an inference of use, however, the defendants may dispel that inference
with evidence that conclusively demonstrates the defendants independently
created their product. (
When the defendants produce evidence of independent creation that is
“‘clear, positive, uncontradicted and of such a nature that it cannot
rationally be disbelieved,’†the inference of use is dispelled as a matter of
law. (Ibid.; see also Hollywood
Screentest, supra, 151
Cal.App.4th at pp. 646, 648; Mann,
summary judgment on the plaintiffs’ implied-in-fact contract claim on the
ground that the use element has been negated by uncontroverted evidence of
independent creation. (
This is all to say that an
issue of fact regarding substantial similarity is not necessarily sufficient to
overcome summary judgment when the defendants show as a matter of law that they
independently created their product. In
an idea submission case, similarities that do not result from copying are
“‘similarities . . . without legal significance.’†(Teich, supra, 170 Cal.App.2d at p. 804 [quoting with approval the
analogous copyright principle that “‘“the law imposes no prohibition upon those
who[,] without copying, independently arrive at the precise combination of
words or notes which have been copyrightedâ€â€™â€ (italics omitted)]; see also
works were without legal significance when inference of use was rebutted with
clear, positive, and uncontradicted evidence of independent creation].) In other words, similarity is no longer a
material issue when the defendants show conclusively that they independently
created their product.
Even if we
assume for the sake of argument that there are substantial similarities between
the 1977 Script and LOST, we agree
with the trial court that ABC presented conclusive and uncontradicted evidence
of independent creation so as to negate the use element of Spinner’s cause of
action. Moreover, the independent
creation defense is bolstered by the fact that Spinner’s so-called evidence of
access is actually speculation, conjecture, or guess work, which weakens any
inference of use that ABC must dispel.
as a Matter of Law
We begin with
the issue of access. To the extent
Spinner has established any inference of use, the inference is not based on
proof of access. His proof of access is
inadequate as a matter of law.
Preliminarily,
we note that both parties rely on copyright infringement cases in making their
access arguments. They do so with good
reason. The framework for proving use in
an idea submission claim is parallel to the framework for showing copying in a
copyright claim. The elements of a copyright
infringement claim are ownership of the copyright and actual copying by the
defendant. (Meta-Film Associates, Inc. v. MCA, Inc. (1984) 586 F.Supp. 1346,
1354 (Meta-Film).) Copying is usually proven circumstantially
through evidence of access and substantial similarity. (Id.
at pp. 1354-1355.) It therefore comes as
no surprise that the parties, as well as the court below, have relied on
analogous copyright cases. (See 4 Nimmer
on Copyright (2012) The Law of Ideas, § 19D.07[B], p. 19D-89 (Rel.
84-5/2011 Pub.465) [noting that idea submission law “borrows liberally†from copyright
jurisprudence and relying on copyright jurisprudence in discussing access in
“law of ideasâ€].) We likewise look to
analogous copyright cases for guidance, in addition to idea submission cases.
Access
means that the defendants had an opportunity to view or to copy the plaintiffs’
work. (Meta-Film, supra, 586
F.Supp. at p. 1355.) More than a “‘bare
possibility’†of access is required, however.
(Ibid.; see also
p. 651.) When there is no direct
evidence of access, the defendants must have had a “‘reasonable possibility’â€
to view the plaintiffs’ work, which must be based on more than mere
speculation. (Meta-Film, supra, at
p. 1355; see also Mann,
Bare
“‘corporate receipt’†of the plaintiffs’ work may not be sufficient to show
access. (Meta-Film, supra, 586
F.Supp. at pp. 1357-1358.) A reasonable
possibility of access requires a sufficiently strong nexus between the
intermediary to whom the plaintiffs submitted their work and the creator of the
allegedly offending work. (
(C.D.Cal., Dec. 19, 2005, No. CV 05-1150 SVW) 2005 WL 3955653 (
the creator should be more than the simple fact that they share a common
employer. (Meta-Film, supra, at
p. 1357.) For instance, the nexus
may be sufficiently strong when the intermediary was in a position to transmit
the plaintiffs’ work to the creator, was a supervisor with responsibility for
the creator’s work, was part of the same work unit, was a contributor of
creative ideas or material to the creator’s work, or was otherwise in contact
with the creator regarding some subject matter that overlapped with the
plaintiffs’ work. (Id. at pp. 1355-1356, 1358.) In other words, the intermediary and the
alleged copier occupy positions such that it is natural for one to impart
information to the other. (
Here,
Spinner’s evidence is insufficient as a matter
of law because he relies on a bare possibility of theoretical access
premised on mere speculation. His theory
of access is that the ABC drama development executives who were involved in the
creation of LOST ‑‑
Braun, Kadin, and Sherman ‑‑ had a reasonable opportunity to view
the 1977 Script because ABC had a policy of permanently retaining unreturned
scripts, and the script must have been present somewhere in a “script libraryâ€
at ABC. This is guess work. First, despite the 1972 retention policy
Spinner cites, ABC never found the 1977 Script in its drama development files.
passage of time between Spinner’s 1977 submission on the one hand and the
creation of LOST and this lawsuit on
the other. Second, Spinner refers
repeatedly to a so-called script library at ABC, but there is no evidence that
there was a centralized library of sorts the executives could access and
search. (Compare Robinson v. New Line Cinema Corp. (4th Cir., Apr. 14, 2000, No.
99-2167) 2000 WL 380124 [access inferred based on, among other things, direct
evidence that script was logged into “computerized ‘script library’†and
executive involved in creating infringing work had access to library] (
based on ABC’s 1972 policy that it will permanently retain unreturned scripts.
Third, the
nexus between the people to whom Spinner submitted his work and the actual
creators of LOST does not remotely
approach strong. The purported nexus
involves several potential intermediaries and several areas of
speculation. Spinner submitted the 1977
Script to ABC executives Alsberg and Gross.
They both left ABC in the 1970’s.
Leoni, the executive to whom Spinner verbally repitched his idea in the
early 1990’s, left ABC in 1995. Braun,
who conceived of the general concept for LOST,
first started working for ABC in 1999.
Although these individuals shared ABC as an employer and drama
development as a work unit, they were not employed at the same time, and in the
case of Alsberg and Gross, the people who actually received the 1977 Script,
their employment at ABC ended decades before Braun’s employment and the
creation of LOST. Thus, Alsberg, Gross, and Leoni were in no
position to transmit Spinner’s work to Braun and the other creators ‑‑
Lieber, Abrams, and Lindelof. Indeed,
none of these creators state they have ever spoken with or received any
materials from Alsberg, Gross, or Leoni.
There is therefore no evidence that Alsberg, Gross, and Leoni had contact
with the creators such that they could contribute ideas to LOST. And they certainly did
not have supervisory responsibility over the creators of LOST. These potential
intermediaries simply did not occupy positions such that it would be natural
for them to impart information to the LOST
creators. (Meta-Film, supra, 586
F.Supp. at p. 1356.)
To the
extent Spinner is suggesting that Kadin and Sherman are potential
intermediaries because these executives had supervisory responsibility over
between Lindelof and Abrams, and reviewed Lindelof’s and Abrams’s work, there
is also no evidence that these executives had any contact with the original
intermediaries who actually received Spinner’s work. Any theory of transmission is, again,
speculation. Spinner’s theory of access
always comes back to the bare possibility that Kadin, Sherman, or Braun had
access to the 1977 Script through an imagined script library, and they then
conveyed his ideas to Lieber, Abrams, and Lindelof. This theory is simply not supported by any
evidence. (Mann, supra, 128 Cal.App.3d at p. 650 [“‘mere possibilities’ do not
afford the basis for factual inferencesâ€].)
This is
made all the more apparent when we compare this case to the case on which Spinner
relies for his script library theory, Robinson. In Robinson,
the court held that there was a genuine issue of material fact as to
“reasonable possibility of access†for several reasons. (Robinson,
supra, 2000 WL 380124.) The intermediary who received the plaintiff’s
work and the executive responsible for the allegedly infringing product worked
for the same company at the same time and were only two floors apart. (Ibid.) Both of them attended the same weekly meeting
for executives. (Ibid.) And it was undisputed
that the intermediary received the plaintiff’s script and had the details of
the script’s submission logged into their employer’s “computerized ‘script
library,’†which was accessible to the other executive. (Ibid.) Robinson
is distinguishable not only because the evidence suggested the intermediary and
the creator could have crossed paths and traded information, but also because
direct evidence showed that a script library existed and the plaintiff’s script
was entered into it. We have no
comparable evidence here.
Besides his
main theory regarding the script library, Spinner also argues that access can
be inferred from “the record-breaking speed†of LOST’s creation. He asserts
that the four days Lindelof and Abrams took to draft the initial outline and
the overnight decision to produce the pilot based on the outline alone was
unprecedented. Even if we assume that
this was unprecedented timing for creating a 21-page outline and making a
decision, these facts alone do not give rise to a reasonable inference of
access. The evidence shows that ABC was,
indeed, trying to move with speed because it hoped to produce
season, and the creators were already behind if this was the case. Moreover, the single case that Spinner cites
for this argument is distinguishable in that the inference of access arose not
from the short creative time frame alone; other facts showed the plaintiff’s
work was widely disseminated and the alleged infringers had the opportunity to
view that work. (JB Oxford & Co. v. First Tennessee Bank National Assn.
(M.D.Tenn. 2006) 427 F.Supp.2d 784, 796.)
In sum,
Spinner has shown only a bare possibility of access based on speculation,
supposition, and guess work. He has not
shown a reasonable possibility of access as a matter of law. (See Meta-Film,
supra, 586 F.Supp. at
pp. 1357-1358 [evidence of access insufficient as a matter of law when
only connection between intermediary and studio that created allegedly
infringing work was that intermediary was under contract with studio regarding
other projects and had an office on studio lot].) Any inference of use, therefore, would have
to be based on substantial similarity alone.
Uncontroverted and Dispels Any Inference of Use as a Matter of Law
Assuming for
the purposes of argument that substantial similarity between the 1977 Script
and LOST gives rise to an inference
of use, ABC has proffered uncontradicted evidence that it independently created
LOST.
We begin
with the two published California decisions discussing independent creation at
length. Teich, supra, 170 Cal.App.2d at pages 799-804, set forth the
independent creation defense to an idea submission lawsuit. (See also id.
at p. 803 [“[D]oes proof that
there was no copying of plaintiff’s product make a complete defense, although
the thing actually used by defendant was closely similar to the one which
plaintiff had presented to it? The
authorities require an affirmative answer.â€].)
In that case, Teich developed an idea for a gadget that made “sun
pictures,†consisting of a black opaque envelope containing a collapsed
cardboard holder, a “negative,†which was a picture printed on cellophane, and
two pieces of sensitized paper. (
the sensitized paper upon exposure to the sun.
(Ibid.) Teich submitted this idea to General Mills
with the thought that it could be used as a cereal box prize. (Id.
at pp. 795-796.) On July 20,
1955, Teich met with an advertising and sales promotion manager of a division
of General Mills in his San Francisco office.
The manager expressed approval of the gadget and asked Teich to work on
some improvements. (Ibid.) Teich left some
samples with the manager. (170
Cal.App.2d at p. 796.) He made
several attempts to contact the manager after that meeting, but he was
unsuccessful. (Id. at p. 797.) In
January 1956, Teich saw that General Mills was offering in one of its cereals a
“‘Magic Sun Picture,’†which bore a “marked similarity†to his gadget. (Ibid.) “The basic principle was the same but there
were differences in details,†though the differences were “insignificant.†(Id.
at pp. 797, 801.)
Teich
brought an idea submission case against General Mills based on the contract
action recognized in Desny. (Teich,
supra, 170 Cal.App.2d at p. 794.) The jury found for Teich, but the trial court
granted General Mills’ motion for judgment notwithstanding the verdict. (Ibid.) The court of appeal affirmed. (Id.
at p. 806.) The court explained
that Teich’s showing of access ‑‑ that he had submitted his idea to
the General Mills manager ‑‑ and the marked similarity between
Teich’s idea and the General Mills Magic Sun Picture raised an inference of
copying and use by General Mills. (
inference as a matter of law with conclusive and uncontradicted evidence that
the Magic Sun Picture was independently conceived. (Id.
at pp. 799-800.) The evidence
consisted of testimony from three witnesses that an advertising agency had
conceived of the idea and had contacted General Mills at its Minneapolis office
(without disclosing any details of the product) several weeks before Teich
first contacted the manager in San Francisco.
(170 Cal.App.2d at p. 799.)
Two of these witnesses were General Mills employees, and the third was
the developer of the product at the advertising agency. (Ibid.) The testimony of these witnesses was
supported by documentary evidence of correspondence showing that, while the
advertising agency eventually disclosed the details of its product in
Minneapolis nine days after Teich’s meeting with the manger in San Francisco,
the agency had been developing its product well before Teich first contacted
General Mills. (Id. at pp. 800-802.) The
court held that General Mills’ evidence conclusively proved independent
creation of the Magic Sun Picture without knowledge of Teich’s idea. (Id.
at p. 802.) It followed from the
absence of copying that Teich had no cause of action. (Id.
at p. 805.)
In
the court followed Teich and applied
the independent creation defense to bar the plaintiffs’ idea submission
claim. The president of Hollywood Screentest
of America, Inc., James Pascucci, conceived of an idea for a reality show
called Hollywood Screentest that
“would give ordinary people from all walks of life the chance to break into the
close-knit Hollywood entertainment community.â€
(Id. at p. 633.) Pascucci contacted an executive at NBC about
his idea in January 2001. They
corresponded back and forth about his idea until November 2001, when an NBC
executive told Pascucci that NBC was “‘not looking for this type of program
right now.’†(Id. at pp. 634-635.)
Pascucci continued to contact NBC with almost no response until
September 2002, when NBC told him it was still going to pass on the idea. (Id.
at p. 635.) On September 5, 2002, NBC
issued a press release announcing a new reality show called
at p. 636.) Pascucci observed a number
of similar elements between Next Action
Star and Hollywood Screentest,
such as having an acting coach on set to assist the contestants with their
challenges, using celebrities in various challenges, a movie deal as the grand
prize, using the Internet and the television show itself to promote the film
component of the show. (
Pascucci brought an idea submission case against NBC including a claim
for breach of implied-in-fact contract.
(Id. at p. 638.) NBC moved for summary judgment on the ground
that Next Action Star was
independently created. (
The trial court granted the summary judgment motion. (151 Cal.App.4th at p. 641.)
The court
of appeal affirmed, holding that NBC had presented undisputed evidence that
unrelated to NBC and unassisted by NBC, and Pascucci had not presented any
evidence calling into question the evidence supporting independent
creation. (Hollywood Screentest, supra,
151 Cal.App.4th at pp. 647-648.) The
evidence of independent creation consisted of declarations from individuals at
the three different companies involved in the development of
three NBC employees. The declarations
documented the creation process that occurred over the course of a year before
the creators presented the idea to NBC.
(Id. at pp. 636-637, 647, fn.
8.)
In
affirming the judgment, the court explained that Pascucci had “point[ed] to no
evidence that NBC actually used†his ideas.
(Hollywood Screentest,
inferences based on general similarities and timing,†and he argued that a fact
question existed as to whether Next
Action Star was independently created because of the “numerous
similarities†between the shows, the modification of Next Action Star from its original stuntman concept to the actor
concept provided by Pascucci, and NBC’s simultaneous acceptance of
“speculation as to NBC’s use is insufficient to create a disputed issue of
fact. An inference of use sufficient to
challenge NBC’s ‘clear, positive and uncontradicted evidence’ of independent
creation may not be drawn from ‘“‘suspicion alone, or . . .
imagination, speculation, supposition, surmise, conjecture, or
guesswork.’â€â€™â€ (Ibid.) Therefore, the
similarities and timing were insufficient to create a disputed issue of fact. (Ibid.) Ultimately, the uncontradicted evidence of
independent creation negated the use element of the cause of action. (Id. at
p. 650.)
In the case
at bar, the evidence of independent creation is clear, positive, and
uncontradicted, as it was in Teich
and Hollywood Screentest. Because this evidence dispels any inference
that ABC used Spinner’s ideas as a matter of law, the trial court did not err
in granting summary judgment.
The
evidence of independent creation may be summarized as follows. ABC executive Braun conceived of the general
concept for LOST around January 2003
when he thought of melding Survivor
and Cast Away to do a show about
survivors of a crash landing on a deserted island. He pitched this idea to other executives at a
brainstorming session during a company retreat, at which he also compared the
concept to Gilligan’s Island and
and included the transcription of Braun’s pitch in the record. Lieber was assigned the work of drafting the
script based on Braun’s idea in September 2003.
His work included the early seeds of what became LOST, including a cast of plane crash survivors stranded on a
seemingly deserted tropical island, competition for leadership roles among the
survivors, the use of the plane fuselage as a setting, and mystery regarding
the main characters’ backgrounds. The
outline also included characters whose basic characteristics are familiar from
some of the LOST characters ‑‑
a pregnant woman, a calm and collected older man, a doctor, a drug addict, a
military officer, and a spoiled rich girl.
Several outline drafts and several drafts of Lieber’s pilot script are
all part of the record.
After Braun
rejected Lieber’s attempts to draft a script, Abrams and Lindelof took up the
project in early January 2004. Their
initial meeting yielded many ideas and six pages of notes containing many of
the main characters and concepts that eventually became the
an outline to submit to ABC, and the various drafts of this outline are
documented in the record through Lindelof’s contemporaneous emails, which
attach these drafts, to Abrams and the Alias
writers and producer. Similarly, after
ABC picked up the pilot based on the outline, the drafts of character sides for
auditions, drafts of each act, and drafts of the complete pilot script are in
the record, and, for the most part, they are attached to Lindelof’s
contemporaneous emails as he distributed the drafts to Abrams and the rest of
the group. Thus, documented in the
record is the evolution of the LOST pilot
from six pages of notes to a 90-plus-page script, over the course of
approximately three months (from January 13, 2004, to April 19,
2004). This is supported by the
declarations of Abrams and Lindelof and voluminous exhibits thereto.
Moreover,
the key players involved in creating LOST
‑‑ Abrams, Lindelof, Lieber, and Braun ‑‑ have declared
that (1) they knew nothing of Spinner, his 1977 Script, or his Outer Space
Treatment until this lawsuit; (2) they did not have his script or treatment
while working on LOST; and (3) no one
ever mentioned his script or treatment to them.
The key players additionally declared that they had never had any
contact with the ABC or SMK executives who received Spinner’s 1977 Script or
Outer Space Treatment, with the exception of Shephard. As to Shephard, the key players had never
spoken with her about Spinner’s work or received any materials from her
regarding his work. In fact, each of the
ABC executives who received Spinner’s work left ABC long before
1977, Alsberg in 1979, Leoni in 1995, and Shephard in 1997. Finally, Spinner himself stated unequivocally
that he never contacted those involved in the production and creation of
to them.
As we noted
previously, this evidence of creation independent of Spinner’s work is clear,
positive, uncontradicted, and of such a nature that it cannot rationally be
disbelieved. (Teich, supra, 170
Cal.App.2d at p. 799.) The evidence is
of the same type that was relied on in Teich
and Hollywood Screentest – sworn
statements of the creators and contemporaneous correspondence documenting the
creation process. (Teich, supra, at pp.
799-802; Hollywood Screentest,
647, fn. 8.) Spinner has not presented
any evidence that LOST was not
created in the manner described in detail by the declarations and supporting
exhibits of Braun, Lieber, Lindelof, and Abrams. Instead, he argues that evidence of access
and substantial similarities contradicts the evidence of independent
creation. First, this reasoning is
circular and unpersuasive. Evidence of
access and substantial similarities may indeed raise an inference of use, but
this inference may be dispelled as a matter of law with the very type of
evidence ABC presents. (
at p. 799.) That is, even if evidence of access and
substantial similarity exists, it does not contradict ABC’s evidence per se,
but merely gives rise to an opposing inference, which ABC has dispelled. Second, Spinner’s “evidence of access†is
nothing more than speculation, conjecture, imagination, or guess work, as we
have observed in part 1 of the Discussion.
Speculation that Braun, Kadin, or Sherman had access to the 1977 Script,
and then more speculation that they transmitted Spinner’s ideas to Lieber,
Lindelof, or Abrams, is insufficient sufficient to create an issue of
fact. (Sinai Memorial Chapel v.
Dudler, supra, 231 Cal.App.3d at
pp. 196-197; see also Hollywood
Screentest, supra, at p. 648
[inference of use sufficient to challenge the defendant’s clear, positive, and
uncontradicted evidence of independent creation may not be drawn from
suspicion, imagination, speculation, supposition, conjecture, or guess work
alone].)
Spinner
makes other arguments not based on allegedly conflicting evidence. For instance, he argues about the quality or
competency of ABC’s evidence. He
maintains that the “self-serving declarations†of interested witnesses ‑‑
Braun, Lieber, Abrams, and Lindelof ‑‑ cannot establish independent
creation as a matter of law. This argument fails to persuade. As the creators of LOST, it would be odd indeed if these individuals were not key
witnesses in this lawsuit. Lieber,
Abrams, and Lindelof were not in-house ABC employees, but were third parties
ABC engaged to write LOST. They are akin to the advertising agency
witness in Teich, who developed the
allegedly copied gadget, and the individuals at the non-NBC companies in
idea for Next Action Star and took it
to NBC. All of these witnesses were
presumably “interested†as well, but the courts nevertheless relied on those
witnesses in finding independent creation as a matter of law. Moreover, as we have already observed, the
evidence of independent creation was not just these witnesses’ statements
alone. The documentary evidence and
particularly the contemporaneous emails showing the evolution of
conclusion.
To the
extent Spinner is suggesting that these witnesses are not credible and
therefore their testimony cannot support summary judgment, we disagree. Their statements that they did not have
access to the 1977 Script and did not know of Spinner’s work until this lawsuit
are not contradicted. And, their
accounts of how LOST was created are
not contradicted. We may not deny
summary judgment on grounds of credibility when ABC has established the
independent creation defense thusly.
(Code Civ. Proc., § 437c, subd. (e).)
In another
instance, Spinner suggests that ABC’s evidence is not as good as the evidence
in Teich and Hollywood Screentest because in those cases, the offending works
were developed without involvement from the defendants and were brought to the
defendants after the fact. Here, he
asserts, ABC was involved in the creation of LOST from day one ‑‑ ABC executive Braun conceived of
the concept and was involved throughout with the third-party creators. And by this time, Spinner argues his script
had been sitting in ABC’s purported “library†for decades. We do not find these differences to mean that
we cannot rely on Teich and
that the third-party creators did not have access to the plaintiff’s work
during their creative process. We have
already discussed how Spinner has not shown access as a matter of law. We will not reiterate that discussion here.
In sum, the
evidence that ABC independently created LOST
is clear, positive, and uncontradicted.
This is sufficient to hold that ABC established the independent creation
defense as a matter of law. The trial
court therefore did not err in granting summary judgment.
DISPOSITION
The
judgment is affirmed. Respondent to
recover costs on appeal.
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
name="_ftn1" title="">[1] We
use the “1977 Script†from here on to refer collectively to both drafts of the
script Spinner submitted to ABC in 1977.
name="_ftn2" title="">[2] While ABC found the Outer Space Treatment in its files, Spinner
appears to have abandoned any claim based on the treatment. He has admitted that LOST and the Outer Space Treatment are not substantially
similar. The essential element of use is
not present if ABC did not base LOST substantially
on the ideas in the treatment. (
