“It is ‘works’ that are protected not ‘ideas’. If ideas can be taken without copying a ‘work’, the copyright owner cannot interfere”
The above position has itself transformed into an uncodified law on the basis of the interpretation of Section 2 of the Copyright Act, Cap. C28, LFN 2004, which provides for the conditions for eligibility for copyright. In other words, the Copyright Act, having classified various works that are copyrightable further states the conditions that must be fulfilled before a literary, musical or artistic can be deemed eligible for copyright, to wit:
a. that sufficient effort has been expended in making the work to give it original character;
b. that the work has been fixed in any definite medium of expression now known or later to be developed from which it can be perceived, reproduced or otherwise communicated either directly or with the aid if any machine or device.
What more, copyright only concerns with protecting ideas that have been expressed in a fixed format. Even if the idea is original or valuable effort was expended to cook up the idea, it will still not enjoy copyright protection, if it has not been fixed in a medium of expression such as writing, recording, inscription e.t.c. Thus, for instance, Mr. A, an enthusiastic scriptwriter takes his time and expends financial resources for an adventure into a deep forest in West Africa where he discovers the unique life of a clan of Pygmies. He sees the need to tell the world the story of his discovery by motion-picture. He calls Mr. B, a producer and downloads his experience in the forest and his idea to put same into Motion-picture. He ends the call with a gladsome heart that the producer is willing to collaborate on the story. He wakes up the next day and on his TV was showing a documentary of undiscovered Pygmies in a Forest in West Africa- produced by his Producer friend, Mr. B.
By law, Mr. A will expectedly run to the house of copyright for protection. Sadly, if copyright were a man, he would have said blankly at Mr. A “I’m sorry, you weren’t so smart enough. You had a very beautiful idea, but I don’t protect ideas. You should have written maybe a note or script”
The dictum of Peterson J. in the English case of University of London Press Ltd v. University Tutorial Press Ltd. gives an instructive credence to the position above thus:
“…Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case if ‘literary work’ with the expression of thought in print or writing…”
IF NOT COPYRIGHT, THEN WHAT?
Without ado, if not copyright the Contract. Contracts will step in with a defensive mantle where copyright has refused protection. Contracts can protect ideas where copyright doesn’t. See further:
CASE
BLAUSTEIN v. BURTON
SUMMARY OF FACT
Plaintiff, Julian Blaustein, a motion picture producer conceived the following ideas:
a. To adapt William Shakespeare’s book ‘The Taming of the Shrew’ into a Motion picture
b. The idea of casting defendants, Elizabeth Burton and Richard Burton as the stars of this motion picture.
c. The idea of using Franco Zefferrilli who at that point had not directed any motion picture in the United States, as the director of the conceived motion picture.
d. The idea of eliminating the ‘play within play’ device used by Shakespeare, in the conceived film version
e. The idea of including the motion picture, two keys scenes which were off-stage in the Shakespeare’s book.
f. The idea of filming the movie in Italy, the exact setting described in the Shakespeare’s book.
Blaustein without writing a script, orally communicated his ideas to the defendants and various people in the industry with the expectation that he would serve as producer on the film, but there was no express contract. A film that included several elements of Blaustein’s concept was then made without Blaustein’s involvement.
BLAUSTEIN filed his complaint against the defendants, Richard Burton, Elizabeth Burton, Franco Zefferrilli & ors, wherein he sought damages for:
i. Breach of contract
Ii. Unjust enrichment
iii. Breach of confidential relationship
iv Services rendered and benefits confered
COURT’S DECISION
The Court held as follows:
1. BLAUSTEIN’s idea of filming of Shakespeare’s play “The Taming of the Shrew” is one which may be protected by contract.
2. The making of an agreement may be inferred by proof of conduct. Express and implied contracts are both based upon the intention of parties and are distinguishable only in the manifestation of assent. Thus, there is an enforceable implied contract between the parties and the defendants are liable.
CONTRACTS THAT PROTECT IDEAS
Thanks to the decision in BLAUSTEIN v. BURTON, though emanating from the United States Jurisdiction, one can agree with confidence that the instrumentality of Contracts/Agreements can be used to protect ideas in the entertainment industry, even in situations where the copyright protection will not arise. Even more, these contracts may be oral, written, express or implied by nature.
To sustain protection by contracts, it is important to understand the nature or contract or clause that will adequately protect a purveyor of an unfixated idea. Contracts such as Non Disclosure Agreement (NDA), Non Compete/Non circumvention Agreement may be included as clauses in an Agreement to be executed by the investor before pitching such an idea.
Where executing an Agreement is impossible before sharing an idea, the purveyor may orally communicate an intention of confidentiality or insert a confidentiality statement in correspondence with the investor.
Overall, fixating the idea into a medium of expression is importantly a safer measure than combating the enforcement of a contract in court.