Proposals for films and television productions are frequently “pitched” (in industry parlance) to studios, networks, and producers. The one making the pitch usually expects the recipient to hold the submission in confidence and to enter into an agreement covering compensation, ownership, control, credit, services, and other key business points before making use of the proffered story or concept. The recipient usually knows of that expectation, even without an express contract that governs the submission.1
Still, it is not unknown for a potential purchaser to “pass” on a pitch, make no deal, and then use the story or concept—or a substantial part of it—without permission. If a plaintiff alleges that a direct recipient of a pitch stole from him, then proving access would not be difficult. And under certain circumstances, actual use by the defendant will be presumed.2 But to succeed in an action, the plaintiff also must show a legally cognizable level of similarity between the submission and the defendant’s work. Not just any similarity will suffice, whether the claim is for copyright infringement or breach of an implied-in-fact contract.3 But what level of similarity is needed to sustain a claim, and is that level different in a copyright context compared to an implied-in-fact contract analysis?
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