Broadcasting (July - Dec 1938)

Protection of Radio Program Ideas THE ONLY sure method today of protecting a radio program idea is to divulge it to no one. Even then the same idea may be conceived quite independently by another, because no one person has a monopoly on thought. It is readily apparent that this method, although sound theoretically, is valueless in practice, because the creator is unable to realize any profit from an idea unless it is put to use, which cannot be done without divulging it. In disclosing it, he should protect himself as much as he can. As most radio program ideas will require dramatization before they can be broadcast, it is advisable for the idea man to put his thoughts into radio script form. If he himself cannot do this, he should engage an experienced radio writer for the work on some suitable written profit sharing arrangement signed by both parties. Preferably, such an agreement should put the ownership of all rights in the idea man, so that only he can sell the material. Aside from the better protection afforded, which will be discussed later, a practical sales advantage is to be gained, because many networks, stations, advertisers and agencies which will not listen to just an idea will consider finished radio scripts. A copy should be kept because the submitted script might be lost; in fact, many companies insist upon this protection for the author because of experience with persons who claimed to have submitted manuscripts which were never received or were lost. A Mere Idea Cannot Be Copyrighted Can a mere idea be copyrighted ? No! However, if the idea is expressed in a radio script consisting of dramatic or dramatico-musical material or in a lecture, sermon or address, the Copyright Office will issue a certificate of registration upon the deposit of one copy , with an application for registration and a $1 fee. The copyright gives the owner no exclusive rights to use the title of the script or to the ideas expressed, although the use of certain titles can be enjoined if by reason of extensive use they have acquired a special meaning to the public. It does give him exclusive rights ■as to his manner of expressing the ideas and no one can thereafter broadcast, perform or copy the script without his permission. The advantages of registration are (1) * Partner since 1936 in the law firm Crawford & Sprague, New York ; special counsel for National Committee of Independent Broadcasters in 1938 American Federation of Musicians negotiations and for NAB in various copyright matters ; associate counsel NBC previous seven years and in important cases of Kreymborg v. Durante, Uproar v. NBC & Texas Co., etc; with New York law firm Hunt, Hill & Betts prior to 1929 ; graduate of New York University Law School ; member New York Advertising Club. Association of Bar of City of New York, American Bar Association, New York County sawyers Association, Federal Communications Bar Association ; author of "Free]iom of the Air", Air Law Review. Written Contract Main Requisite Declares Legal Authority By STUART SPRAGUE* HOW CAN I protect my radio program idea? That question, or variations of it, is put to Broadcasting and its editors almost weekly. To supply expert legal thought on this highly controversial subject, Broadcasting asked the writer, who is widely recognized as an authority on radio performing rights, to throw all possible light on the problem. He has had extensive experience in handling the problems involved in copyright. MR. SPRAGUE prima facie proof of authorship, (2) proof that the work was created not later than the date of registration, (3) statutory damages and counsel fees allowable in case of infringement, and (4) psychological effect of the term "copyright" on the public and on potential or actual infringers. It should be stated that it; is not legally necessary to copyright radio scripts as they are protected by our common law until such time as copies are made for publication or sale. Public performance does not amount to publication. The advantages of this common law protection are (1) perpetual term until publication, (2) no registration formalities, (3) protection even if not in dramatic or lecture form and (4) no expense. In practice, only a small percentage of radio scripts broadcast are copyrighted, due, no doubt, to the expense and trouble of copyrighting. Written Contract as Protection to Originator Some believe that certain rights can be secured in a plan, idea or script by merely mailing it in a postpaid sealed envelope addressed to the sender or some responsible third party, the receiving party merely keeping the package unopened. In the writer's opinion all that can be said for this protection scheme is that it furnishes some evidence that the idea, plan or script was conceived or written not later than the postmark date. It creates no rights that the creator of the idea would not otherwise possess. A sworn affidavit of the creator to the script or idea with a county clerk's certificate affixed (to disprove any contention that the affidavit was dated back) would seem about equally effective. The important thing to bear in mind is that the rights of the parties are established by the negotiations with the prospective purchaser rather than by the affidavit or the mailing of the idea or plan. Should the originator of a program idea or plan submit it to a station or an advertiser without having placed it in some literary form, he cannot object to its use unless he has a contract. The Contract may be verbal and in some instances its terms need not even have been discussed, the courts implying a contract where the circumstances indicate that the idea man had no intention of making a gift of the idea for the commercial advantage of the other party. The jury may decide on the facts of the case to award a reasonable sum to the plaintiff; an award equal to defendant's profits would be excessive although proper enough in a copyright case. On the other hand, they may conclude that the idea was not original or that the plaintiff had no intention of securing financial compensation when he submitted it or that the defendant made no use of the idea, or that the plaintiff gave the defendant full discretion as to what, if anything, should be paid for the use of the idea, in any of which cases no recovery should be allowed. If a program idea is submitted, both the party submitting it and the party to whom it is submitted should want it expressed in writing in as much as possible for then neither party can later be confronted with the contention that the program idea was quite different from that actually submitted even though the idea was also orally discussed, as it usually will be. Occasionally originators of sales or program ideas have been known to submit a formal contract requiring the payment of a percentage of increased sales and to insist upon the contract being signed before divulging any details. If one were looking for the best way of killing off a prospect, this would be it. No sane advertiser could be expected to put his name to a contract that might tie his hands from using other similar ideas created by other idea men or by his own advertising department. Because of a number of coui't decisions allowing recoveries for the alleged use of slogans or plans, many advertising agencies have devised a form of protection against unfounded suits — a document which they require the idea man to sign. A person might hesitate to sign this form because it seems to make the agency the sole arbiter as to whether the idea is original or not and what price should be paid. However, if the person knows the agency's reputation for fair dealing, he should rely on it and sign the agreement because no reputable agency could afford to jeopardize its business standing by using an idea without paying the originator. Holdings of the Courts on Rights of Idea Creators Various courts have held that a contract to pay for the use of an idea lacking originality ig unenforceable. There are decisions that an idea for increasing profits by merely raising the price of the article sold lacked novelty and that an idea of rearranging the weight of an automobile to equalize the strain upon the springs lacked novelty. Courts have held that a plan for insurance sales could be used by the company to which it was submitted, as no steps had been taken to protect the plan from escape or disclosure; that a slogan submitted to and claimed to have been used by a department store justified a jury verdict for the idea man; that the submission of ideas or plans to an agency on a speculative basis, the agency submitting them to an advertiser, who, however, did not use them, justified a verdict against the agency for the value of services performed at the agency's request on the theory that the prestige of the agency was enhanced in the eyes of the advertiser; that when an advertiser agreed to consider an idea only on the understanding that the use to be made of it and the price, if any, to be paid for it, were to rest solely in the advertiser's discretion there could be no recovery for the use of the idea thus submitted as the creator relied solely upon the good faith and sense of fairness of the advertiser in paying for the idea; that an agency which creates an advertising plan for a client, but which is unable to reap its benefits because the client engages a different agency to use the plan, is entitled to a verdict. It is evident from the decisions handed down thus far that the law furnishes a remedy in situations in which the idea is original and is submitted and used under conditions which make some compensation not only expected but also virtually necessary. However, since the law always favors the diligent, persons who put their ideas into the most tangible form possible and who protect them as suggested in this article are more apt to meet with success in both negotiation and litigation than persons who have mere intangible ideas or plans. BROADCASTING • Broadcast Advertising September 1, 1938 • Page 15