In Letters of the Law, entertainment attorney James Napper, III discusses legal topics and answers questions submitted by Scene Magazine readers, both entertainment professionals and the general public. Submit your legal questions to email@example.com. To contact James Napper directly, email firstname.lastname@example.org or visit www.napperlaw.com.
Q: I have a great idea for a reality TV show. There’s no script for a reality TV show or documentary, so how do I protect my idea if I can’t copyright it?
You are correct in that an idea by itself is not copyrightable or protectable, but there are a few procedures I would suggest that will afford you some protection of a truly unique concept.
First, I would suggest you write a treatment for the show. The treatment would then be protected under copyright law. As you may or may not know, copyright protection subsists from the moment of creation. This means that any work that meets the criteria of originality sufficient for copyright protection will be protected from the very moment that it is reduced to a tangible form. Writing a treatment of the potential reality show amounts to reducing that idea to a tangible form under copyright law. With that said, I would suggest that your treatment be very specific so as to protect your idea as opposed to something that is very generic and likely difficult to distinguish.
The other step I would suggest you take is maintaining the confidentiality of your material. In doing so, you must maintain the information in a confidential manner at all times. Require any person to whom you are disclosing the material to sign a non-disclosure and non-circumvent agreement.
The non-disclosure agreement will require the other party to agree that: (a) the idea for the show is unique and valuable; (b) the idea is proprietary information created and owned by you; (c) the company/producer will keep the idea and information confidential; (d) the company/producer will not exploit the idea without your permission; and (e) if the company/producer does exploit the idea you will either be attached or compensated for their exploitation of the idea.
It remains, however, critical that you are aware of what is considered confidential information and the factors that determine confidentiality. Rather than discuss what may be deemed confidential information, I believe it prudent to point out what is not considered confidential information. That material that is typically excluded includes: (a) material which you disclose to other parties in a non-confidential manner; (b) material which the company/producer can show that it developed independently of you; (c) material that has become publicly known; or (d) material that is public domain or not actually proprietary in nature such as clichéd stories, plots or concepts.
Q: I would like to write a book and/or a screenplay about someone’s personal story. How do I get the so-called “life rights” to their story and what does that entail?
What you need to create a work based on someone’s personal story while commonly called “life rights” is actually a series of rights and releases from liability. Generally, what you are looking to acquire is the following: (a) the right to portray that particular person’s life in whole or part; (b) the right to fictionalize or modify some portions of that story; (c) the right to use pseudonyms for people and places portrayed in the story; (d) license to any pre-existing works covering the story; and a covenant not to sue for such things as libel and defamation, invasion of privacy and similar causes of action.
If you are pursuing such rights, it is vital that you engage an experienced entertainment attorney familiar with these types of agreements so that you are properly covered from any potential issues that may arise under such circumstances.
About James Napper, III
A Louisiana-based attorney who specializes in intellectual property and entertainment law, James Napper, III, J.D., LL.M. is a graduate of the The George Washington University Law School in Washington, D.C., where he studied intellectual property law. He is a recipient of the Stephen T. Victory Memorial Award for “Who Dat: The NFL, New Orleans, and the Implications of LSU v. Smack Apparel,” and the author of “Life as Art: How Technology and the Infusion of Music Into Daily Life Spurred the Sound Recordings Act of 1971,” which was selected for inclusion in the 2010 Entertainment, Publishing and Arts Legal Handbook.
Disclaimer: The information contained herein is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This information is not intended to create an attorney-client relationship between you and James Napper, Scene Magazine, or any associated companies, and you should not act or rely on any information in this publication without seeking the advice of an attorney. In reading this article, please note that the information provided is not a substitute for consulting with an experienced attorney and receiving counsel based on the facts and circumstances of a particular transaction. Many of the legal principles mentioned are subject to exceptions and qualifications, which may not be noted. Furthermore, case law and statutes are subject to revision and may not apply in every state. Because of the quick pace of technological change, some of the information in these articles may be outdated by the time you read it.