The Evolving Law of Ideas in Girl Friends Productions, Inc. v. Abc, Inc.

• Publication year: 2000
• Citation: Vol. 2 No. 2000

Jen Miller

I. Introduction

This Note discusses recent developments in the law of protection of ideas. The present law of protection of ideas differs from state to state. The range in protection theories results from the conflicting goal of protecting one's "property" from theft and the belief that ideas should be in the public domain.⁰ Courts have vied with these competing interests, and have used different methods to expand and to limit the protection of ideas.

The recent case of Girl Friends Productions, Inc. v. ABC, Inc¹ shows the trend in seeking to protect ideas under federal unfair competition laws, and represents a challenge to the popular talk show, "The View." In Girl Friends Productions, Inc., the court relied on Section 43(a) of the Lanham Act, which provides a civil action for false designation of origin in connection with goods and services.² This Note also reviews the other prevailing theories for legal protection of ideas and examines the possible future of the law in light of this decision.

II. Statement of the Case: Girl Friends Productions, Inc. v. ABC, Inc.

The plaintiffs in this case were Sandra Fulton Gabriel, a television producer and program developer, and Girl Friends Productions, Inc., the production company she and a colleague formed in 1993.³ Plaintiff Gabriel conceived the idea for a talk show format, to be called "Girl Friends," featuring three female non-celebrity co-hosts, representing different generations and ethnicities.⁴ During each installment the co-hosts would discuss a controversial topic with their audience members and guests.⁵

Plaintiffs entered into a contract with defendant Greengrass Productions, Inc. ("Greengrass")⁶ on August 11, 1994, whereby Greengrass would fund production of three pilot episodes of "Girl Friends" in exchange for all copyrights in the pilots and an exclusive right to option the series for one year after delivery of the pilot episodes.⁷ According to the contract, plaintiffs would receive additional compensation if Greengrass chose to exercise the option, and if Greengrass chose not to exercise the option, plaintiffs could license the pilot back from Greengrass for one year in order to market it to other networks.⁸ After viewing the pilot episodes, Greengrass chose not to exercise its option, which then expired in 1995.⁹ Plaintiffs did not license the pilot episodes, and their licensing period expired in 1995 as well.¹⁰

In 1997 ABC began airing the talk show "The View," produced by defendant Barwall Productions, Inc.¹¹ "The View" stars defendant Barbara Walters and four other female professional television personalities.¹² The format of "The View" features celebrity guests, multiple topics per installment, and discussions of current news events and current films.¹³

Plaintiffs sued in the United States District Court for the Southern District of New York claiming that "The View" was based on and substantially similar to "Girl Friends."¹⁴ This suit alleged breach of contract violation of Section 43(a) of the Lanham Act,¹⁵ which prohibits false designation of origin and false description; breach of implied covenant of good faith and fair dealing; abuse of contractual relationship; unfair competition; tortious interference with contract; tortious interference with economic opportunity; and recovery on a theory of quantum meruit.¹⁶

Defendants moved for summary judgment and the court granted that motion in respect to all of plaintiff's claims.¹⁷ The court engaged in a substantial similarity analysis, finding that "The View" was not "based on" "Girl Friends" under any reasonable interpretation of that phrase from the plaintiff's contract.¹⁸

The evidence of the lack of similarity came from four main points. First, the essence of "Girl Friends" was that the hosts would be neither celebrities nor professional television personalities so that the discussions would be candid and authentic.¹⁹ In contrast, each host of "The View" had prior television or journalism experience.²⁰ Second, the format of "Girl Friends" did not include celebrity guests, while "The View" was specifically designed to attract celebrities for guest spots.²¹ Third, the "Girl Friends" hosts would represent different generations and different races or ethnicities in order to "ignite conflict, inspire compassion and help bridge the age and ethnic gaps with humor and explosive debates."²² "The View's" five hosts necessarily represented different age groups, but there was no individual representative for any generation, and their casting focus was on personal chemistry, not ethnic or racial diversity.²³ Fourth, each episode of "Girl Friends" would be devoted to a single, long-range topic that was not time-sensitive in order to allow for "stacked" production of several episodes for later broadcast.²⁴ "The View" was broadcast live or with a slight delay in order to include time-sensitive material and multiple short-range topics.²⁵ The court also found sufficient evidence of Barbara Walters's independent creation of the idea to support Defendants' summary judgment motion.²⁶

The court concluded that no reasonable interpretation of "based on" would support the plaintiffs' contract claim, and the same analysis defeated the other claims as well.²⁷ The lack of substantial similarity between the two television shows defeated the claim under Section 43(a) of the Lanham Act for false designation of origin and false description, relying on Attia v. Society of the New York Hospital²⁸ and Waldman Publishing Corp. v. Landoll, Inc.²⁹ for extending the substantial similarity analysis from copyright law to this provision of the Lanham Act.³⁰ The claim under quantum meruit was precluded because an express contract governed the dispute.³¹ The lack of similarity and the evidence of independent creation also defeated the other claims.³²

III. Background Law

While legal protection of ideas is expanding, historically their protection has been strongly disfavored. Ideas and concepts do not merit protection under any of the traditional areas of federal intellectual property law (copyright, patent, trademark and trade secret law), so potential plaintiffs must look to state law for protection. Traditional theories for protecting ideas under state law include property, express contract, implied-in-fact contract, quasi contract (or unjust enrichment), or confidential relationship.³³

Because of the entertainment industry, New York and California are the states with the most opportunity to consider the protection of ideas;³⁴ however, the two states take different approaches. California favors the contract approach, finding protection of ideas only when there is either an express or an implied-in-fact contract, because the disclosure of an idea can be valid consideration.³⁵ New York also recognizes the contract theories, but it has traditionally looked to property law to protect ideas only when they are novel and concrete.³⁶ As this Note shows, New York law is in the process of adding another method of protecting ideas.

A. The Requirement of Novelty

The seminal case discussing the novelty issue under New York law is Murray v. National Broadcasting Company, Inc.³⁷ Plaintiff proposed an idea for a situation comedy television show starring Bill Cosby in a non-stereotypical role, to be called "Father's Day."³⁸ Four years later defendants began airing "The Cosby Show," a family situation comedy starring Bill Cosby.³⁹ Plaintiff sued claiming racial discrimination; false designation of origin under Lanham Act Section 43(a); and state law misappropriation, conversion, breach of implied contract, unjust enrichment, and fraud.⁴⁰ The court determined that there was not a legally protectible property interest because plaintiff's ideas lacked novelty, and that finding was fatal to all of plaintiff's claims.⁴¹

The court in Murray followed the precedent established in the 1970 case of Bram v. Dannon Milk Products, Inc.,⁴² which stated the proposition that "[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use."⁴³ The later case of Nadel v. Play-by-Play Toys & Novelty⁴⁴ limited that result, and found that only novelty to the buyer was necessary for a contract claim, not absolute novelty.⁴⁵

B. The Waldman Cases

1. Waldman PublishingCorp. v. Landoll, Inc.

In Waldman Publishing Corp. v. Landoll, Inc.,⁴⁶ the Second Circuit used Section 43(a) of the Lanham Act to provide protection for ideas that, while they consisted of copyrightable matter, were not in fact copyrighted. The court found that the prohibition of false designation of origin under Section 43(a) applied to misattribution of authorship of a written work.⁴⁷ Plaintiffs published a series of illustrated children's books adapted from stories in the public domain, such as Black Beauty, The Swiss Family Robinson, and Oliver Twist.⁴⁸ Three years later, defendants began publishing illustrated versions of six of the same stories.⁴⁹ The district court found, and the 2nd Circuit agreed, that while defendants'...