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Legal Eagle

Copyright

Q: Copyrighting ideas

When I compete for entertainment contracts I have to produce ideas for prospective clients at the initial discussion stages. However, how do I ensure - without prejudicing my chance of getting the job - they do not simply pump me for those ideas or my expertise without actually employing me?

A: It is not clear what entertainment contracts and type of ideas you are talking about. However, for present purposes, I will assume your question is directed to some kind of copyright material and not marketing or publicity ideas or whatever.

Copyright is a property right which subsists only in original literary, dramatic, musical or artistic works, sound recordings, films, broadcasts and typography. There is no copyright in an idea as such but there may be in the manner in which the idea is expressed, provided such expression is 'original' and provided it is recorded in writing or in some other permanent form such as film or electronic record.

Accordingly, if you wish your ideas to have any chance of qualifying for copyright protection, you should put them down in writing and flesh them out into a 'treatment' in as much detail as you can muster, before disclosing them to your clients. You will need to be able to prove the date of doing so, in case the other party concerned claims to have thought of the idea already and to have some prior treatment or other written record relating to the development of the idea concerned. The best way of dealing with this time factor is to deposit a copy of your treatment or other record with a solicitor or other professional or someone else of repute, whose evidence as to date of lodgement is likely to have credibility in case of dispute.

You mention the possibility of the other party employing you. I do not know whether you mean to refer to employment in the technical sense but it is worth noting in passing that, if and when you are employed, the first owner of any copyright in material created by an employee in the course of his employment is the employer, subject to any agreement to the contrary.

Whether you are concerned with copyright material or not, there is another way of protecting yourself against adverse consequences of disclosure of ideas to a prospective client and that is to obtain from the other party concerned a confidentiality undertaking prior to any such disclosure. Any such undertaking should be expressed to be given on behalf of the corporate entity you are dealing with, any affiliate thereof and any officers, employees or agents thereof. In order to be really effective and comprehensive, it is desirable to have any such undertaking drawn up by a lawyer. The problem is that I suspect the mere fact of asking for such a written, legalistic undertaking is likely to put the other party off to the extent of possibly being unwilling to proceed, so asking for it may be counterproductive, particularly if you are trying to obtain new business and do not have equality of bargaining power. An alternative would be for you to get your lawyer to devise a simple form of verbal undertaking for you to request (depending upon the particular circumstances of your case) which may more easily be obtained, if requested in a tactful and amicable way. In that case it would be desirable to take someone to the meeting who could subsequently give evidence about the undertaking agreement, if indeed you get the desired result. If you are successful in getting a confidentiality undertaking, then any breach of it by misusing the information disclosed in confidence for the purpose concerned would be actionable. Confidentiality undertakings of this kind are commonly used in the case of proposed company mergers and acquisitions but they can apply also to the type of circumstances which you describe.

Quite apart from the above, I suggest you do not give too much away about your ideas 'at the initial discussion stages' referred to in your question. It would be prudent to disclose just enough to whet the appetite, as it were, of the other party, sufficiently to make him want to know more, at which point you can introduce the requirement of a formal contract of employment or engagement, before developing your ideas further.

First published May 2003