Brendan Begley in Bloomberg Law: Hollywood Studios Use Free Speech Law to Beat Idea Theft Suits
Published: October 25, 2024
This article was first published in Bloomberg Law, reprinted by permission
- Anti-SLAPP motions help studios knock down idea theft claims
- Creatives’ protection ‘hanging by the thinnest of threads’
Hollywood giants accused of stealing ideas from writers often play a powerful free speech card to freeze lawsuits in a way attorneys say has severely tilted the scales against creatives in California.
That card is an anti-SLAPP motion under the state’s law against “strategic lawsuits against public participation.” It pauses lawsuits that implicate free speech and forces plaintiffs to show they can win the case near the outset. Attorneys say it erects a steep hill for creators to climb: there’s limited discovery to prove their claims have merit, a denial can immediately be appealed and further delay the lawsuit, and a successful motion puts plaintiffs on the hook for deep-pocketed defendants’ attorneys’ fees.
It’s a useful tool to deter baseless lawsuits against anyone speaking out on matters of public interest, attorneys say, but in the context of idea theft suits, it’s benefiting large companies.
“The original intent of the anti-SLAPP statute was to help David fight Goliath, but it’s increasingly been weaponized by big guys looking to ward off little guys,” said Dan Lifschitz of Gipson Hoffman & Pancione. “In the entertainment space, any attempt to hold a major corporation responsible for ripping off a creative’s work is now reflexively claimed to be a violation of the corporation’s free speech rights.”
In California, defendants have to show only that the lawsuit targets a “protected activity” that’s “in furtherance of a person’s right of petition or free speech” and “in connection with a public issue” to force plaintiffs to demonstrate a probability of winning the suit, still at the pleading stage.
David Grossman, of Loeb & Loeb LLP, who has litigated anti-SLAPP motions for clients including NBCUniversal, called them a “powerful tool for defendants.”
The maneuver has been bolstered by recent California appeals courts decisions—Musero v. Creative Artists Agency in 2021 and Norman v. Ross this year—which made it easier to prevail on anti-SLAPP motions. Plaintiffs’ lawyers are now wary of filing idea theft lawsuits, according to interviews with eight California entertainment and intellectual property attorneys.
“I can’t imagine that anyone who understands the Musero decision hanging out there now, as opposed to what the state of the law was a few years ago, is going to feel as comfortable as they were before,” said Kevin Gamarnik of Foley Bezek Behle & Curtis LLP.
“This whole area of law is a goddamn mess now,” Lifschitz added. “That makes it very tricky to advise clients on what a good idea theft claim looks like.”
State, Federal Divergence
There’s an anti-SLAPP fissure between California state courts and the federal appeals court with jurisdiction over the state.
In a 2017 decision in Jordan-Benel v. Universal City Studios over the screenplay for the movie “The Purge,” the US Court of Appeals for the Ninth Circuit offered a glimmer of hope for creatives suing studios. Douglas Jordan-Benel—who asserted copyright infringement and idea theft claims—argued his problem wasn’t with the movie using his idea, but that he was never paid for it. That didn’t challenge free speech rights, he said.
The court agreed, affirming a district court’s ruling and rejecting the studio’s anti-SLAPP motion.
But because federal copyright law protects the expression of ideas and not the ideas themselves, idea theft claims fall under state law. California state courts have recognized idea submissions as implied-in-fact contracts—that’s why courts in Musero and Norman diverged from the Ninth Circuit and ruled the payment question can’t be separated from the speech factor.
In Musero, California Court of Appeal Presiding Justice Dennis M. Perluss denied an anti-SLAPP motion, but wrote that “whatever the purported ‘target’ of a cause of action, if protected speech activity supplies an element of the claim,” the burden shifts onto the plaintiffs to show the suit has merit.
In Norman, a separate Court of Appeal panel said they agreed with Perluss, ruling that “Jordan-Benel is no longer persuasive.”
“If idea-theft protection is still alive in California, it is hanging by the thinnest of threads,” said Glen Kulik of Kulik Gottesman Siegel & Ware LLP, who represented Jordan-Benel.
Kulik said he no longer litigates idea theft claims.
“I didn’t think they could be won,” he said.
Other attorneys sounded similar notes of caution.
“I’m much more careful with the theft of idea case, because (a) you need discovery, and (b) you’ve got to deal with the SLAPP and you’ve got to deal with the appeal,” Douglas L. Johnson, of Beverly Hills-based Johnson & Johnson LLP, said. “You’re looking at a lot of time and money and not clear on which way the wind’s going to blow.”
If an idea theft claim landed in federal court today, even though the Ninth Circuit decision in Jordan-Benel would be binding, lawyers could make the argument that the law has changed since the 2017 decision, said appellate law specialist Brendan J. Begley from Weintraub Tobin. He predicted the federal court would defer to the state rulings and unwind its precedent.
Stemming a ‘Flood’
Idea theft claims have always been tricky, according to Erica Van Loon, partner at Nixon Peabody LLP. Plaintiffs have to show access to the idea and that the person they’re suing was going to pay them for using it, she said.
Van Loon said her team is “bombarded” with requests from would-be plaintiffs who believe their idea was stolen, but many times they don’t have enough evidence.
David Fink, an attorney at Venable LLP who often represents large studios, said in his experience ideas aren’t stolen as often as people think. Without the ant-SLAPP statute, he said, creators and publishers of all kinds of media would be “subject to First Amendment bullying.”
“It prevents studios from being flooded with dozens of lawsuits—but not just related or limited to ideas submission cases,” he said. “It has to do with all facets of the creation of content.”