The issues surrounding Steven Spielberg’s 1997 Oscar-nominated slave drama Amistad reveals the issues that can befall even an established, well-connected artist when pitching a movie idea (or screenplay) to a studio. You, the creative, may take some steps to protect your hard work against theft. However, your best protection in the end may be the assistance of outstanding legal counsel.

Echoes of Amistad

In 1988, Barbara Chase-Riboud met with Spielberg’s Amblin Entertainment executives to discuss her book Echo of Lions, about a slave revolt in 1839. Nothing fruitful came of the meeting. Amblin passed on the project. Chase-Riboud also shopped her book to Dustin Hoffman’s production company, which optioned the rights.

Then, in 1997, DreamWorks released the Spielberg-directed Amistad to critical acclaim. Knowing that Spielberg himself had at least received her book and she had discussed turning it into a film with his production company, she became suspicious. She filed a copyright infringement suit against DreamWorks prior to the film’s release.

The Elements of Copyright Infringement

Ms. Chase-Riboud’s suit had several hurdles to overcome. She had to show the parties she sued had access to the material. She also had to show that there was a substantial similarity between her work and Amistad. These are essential elements of a copyright infringement claim; that the accused had access to the material and that there exists an actionable similarity. Additionally, her book is a fictionalized version of a historical event. Facts, true life events, aren’t protected under U.S. copyright law, only the methods used to present the facts.

To show a party had access to the work in dispute you must show that one or more persons on the defendant’s side could have seen the material. It’s circumstantial evidence. In the case of DreamWorks, not only did Amblin executives have access to the Echo of Lions, but the screenwriter had read the book while working for Dustin Hoffman.

It’s more difficult to show two works are substantially similar. If the alleged similarities are only ideas, there is no actionable case, as ideas don’t receive copyright protection. If the alleged similarities are historical facts, there is no actionable case, as history receives no copyright protection.

Ms. Chase-Riboud’s work is fiction based on real events. So then, the court would have to eliminate those factual events from considering similarity.

After ideas and facts are removed from the analysis, the court will then look to see how closely one work tracks the other. For screenplays, the court will look at plot points, visual representations, characters and other concrete details.

Another Argument: Breach of Implied Contract

In addition to filing a copyright violation claim, Ms. Chase-Riboud argued that her meeting with Amblin executives established an implied contract between the parties; that her idea was consideration and the company agreed to pay her if they used her idea to make a movie based on her book. She asked the court to find an implied contract based on standard industry practices that writers or other creatives regularly meet with a studio to receive compensation for their work if it is used.

Chase-Riboud and her lawyer, who successfully represented Art Buchwald in the Coming to America copyright infringement case, tried to stop the release of Amistad as part of her claim. A state court denied the injunction, finding no similarity between the works. Eventually, she withdrew the suit (many assume that she settled with the studio out of court) so there was no ruling on the breach of implied contract. However, a writing team recently successfully sued USA Networks on that issue in Forest Park Pictures v. Universal Television. The court agreed with the plaintiffs that the network’s actions established a contract between the parties for which the plaintiffs were never compensated.

Protecting Your Screenplay from Infringement

Chase-Riboud’s example shows the potential for problems when submitting screenplays, novels, comics or short stories to Hollywood production companies with the notion of turning them into movies. The author is essentially placing his or her head in the lion’s mouth; you have little protection other than the good graces of the person across the table from you in the pitch meeting. Yet, you can take steps that will help.

Registering the Work

Most beginning writers know about registering the work with the U.S. Copyright Office and the Writer’s Guild. These steps go to show that you are the author of the original work and that copyright law protects your work. However, copyright law protects original works in any fixed media.

Submitting Your Work

Avoid unsolicited submissions. Television writer and director Eric Haywood noted recently on social media that he doesn’t allow anyone to pitch ideas to him at parties. He doesn’t want to invite lawsuits any more than you want your copyright infringed upon. Most successful production companies don’t accept unsolicited scripts, requiring that you submit through an agent or manager if queried. A respected intermediary may give you an additional level of protection. Even then, the company may require that you sign a submission release.

Submission Releases

A submission release is a document meant to protect the production company or literary agency from future legal action. It establishes the depth of the legal relationship between the writer and company and may require that any dispute be settled through arbitration.

The writer’s benefit from a submission release is that the document states that a writer will receive compensation if the other party uses any original work that was protected by copyright law.

If you are desperate to have someone look at your work, you may be ready to sign anything to get your foot in the door. You should never sign a submission release without having an entertainment attorney review it. A document may contain a provision that the studio would not owe you any form of compensation whether they use your work or not. A lawyer should be able to spot this right away.

Keep Accurate Records

In case you find yourself a possible victim of copyright infringement by a studio, your attorney may need a paper trail to prove your argument. Note contemporaneously your interactions with the production company that includes the persons involved and any statements they may have made. Keep all Emails, logistics records and other correspondence.