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January 18, 2023 | BusinessCopyrightFrom the blog

Are Ideas Protected by Copyright Law?

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Carlianna Dengel

Associate Attorney

If you have a great idea for a new movie, television series or product and you want to pitch it to someone, how can you protect your idea from being stolen?  Similarly, if you receive an unsolicited idea from an acquaintance, do you have to pay them to use the idea?

While the expression of ideas is protected by copyright law, ideas themselves are generally not copyrightable (or protectible by other forms of intellectual property law, such as patent or trademark law).  Which may leave you wondering, how can there be so many lawsuits related to idea theft, particularly in the entertainment and technology industries?

Most of these claims are based on contract law instead of intellectual property law. 

What is Protected Under U.S. Copyright Law? 

Section 102(b) of the Copyright Act states “in no case does copyright protection … extend to any idea….”

However, an expression of an idea is protected by copyright, so long as it is original, and the expression meets the other requirements of copyright protection (see Section 102(a) of the Copyright Act).

So, if you have an idea for a television series, that idea would not receive copyright protection on its own.  However, your expression of the idea, such as a script, pilot or other filmed episode of the show could receive copyright protection. 

Can Contract Law Protect My Idea? 

Though a copyright claim for an idea is barred by Section 102(b), some states allow idea theft lawsuits based on contract law.  In these states, if you share your idea with someone in exchange for an agreement that you will be paid if that person uses your idea, the idea will be protected by contract law principles.  The agreement can either be written or verbal.  It can be express or implied from the circumstances and behavior of each party, if the receiving party should reasonably believe that a contract has been formed.  These are sometimes known as implied-in-fact contracts.

Courts have held that implied-in-fact contract claims are not preempted by copyright law.  Instead, plaintiff must establish there was an implied contract with an implied condition of payment for use of the idea.

For example, in California, for a claim of idea theft to not be precluded by copyright law, the implied-in-fact contract requires proof of:

  • Submission of the idea subject to an obligation to pay for use of that idea;
  • Voluntary acceptance of the submission together with a reasonable expectation of the obligation to pay for the use of that idea;
  • Use of that idea by the receiving party; and
  • Damages.

Notably, the person who submits the idea must indicate that payment is expected, and the recipient must voluntarily accept this condition before any disclosure of the idea is made.  The landmark California case Desny v. Wilder said it best: “[T]he idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power.

New York and California courts agree that idea theft claims based on implied-in-fact contracts are not precluded by copyright law, but New York requires an additional element.  Idea theft in New York requires proof that an idea is novel to the buyer.  Whether an idea is novel requires a fact-specific analysis that focuses on that particular buyer’s perspective. 


To reduce the risk of claims for idea theft, clear guidelines and processes regarding the submission and acceptance of ideas are essential.  Companies should have a written submissions process that states there is no promise of payment and that the company may have similar ideas in progress.  In addition, all communications should be carefully managed and documented.  On the other hand, individuals with ideas they would like to pitch should use the recipient’s designated channels, should not send unsolicited pitches and may want to employ an agent or representative to assist in getting an appropriate agreement before any disclosures are made. 

Copyright and idea theft are complicated areas of law.  Contact an experienced attorney for assistance in establishing appropriate procedures and guidance on how to best protect your interests.

Photo by Diego PH on Unsplash


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