Ninth Circuit affirms denial of anti-SLAPP motion in “idea theft” case stemming from alleged use of plaintiff’s screenplay in “The Purge” film series, holding that breach of implied contract claim did not arise from act in furtherance of right of free speech.

Screenwriter Douglas Jordan-Benel sued Universal City Studios, United Talent Agency and others involved in the production of “The Purge” film series for copyright infringement, breach of implied-in-fact contract and related declaratory relief, alleging that the films were based in substantial part on Jordan-Benel’s screenplay “Settler’s Day.” Plaintiff’s implied contract (or “idea theft”) claim was originally based on two theories — defendants’ alleged failure to pay, and failure to credit plaintiff in the films for the use of his idea. Defendants moved to strike plaintiff’s implied contract claim under California’s anti-SLAPP statute. The district court denied the motion, ruling that the contract claim did not arise from an act in furtherance of the right of free speech because it was based on defendants’ failure to pay for the use of plaintiff’s idea, not the production and distribution of the films. (Read our summary of the district court’s decision here.)

On appeal, plaintiff’s counsel explained that the contract theory based on defendants’ alleged failure to give credit was no longer part of the case. With respect to the claim based on the alleged failure to pay, the Ninth Circuit affirmed the district court’s ruling denying the anti-SLAPP motion.

The Ninth Circuit noted that the anti-SLAPP statute applies to claims “arising from” conduct in furtherance of the right of free speech, a threshold inquiry requiring courts to ask two questions: “(1) From what conduct does this claim arise? and (2) Is that conduct in furtherance of the rights of petition or free speech?” Addressing the first question, the Ninth Circuit explained that “for purposes of anti-SLAPP, the conduct from which a claim arises is the conduct that constitutes the specific act of wrongdoing challenged by the plaintiff.” Here, the court held, the conduct underlying plaintiff’s breach of implied-in-fact contract claim was defendants’ failure to pay for the use of the screenplay idea rather than the production and distribution of the films. The Ninth Circuit noted that plaintiff’s claim “does not challenge the activity of filmmaking at all” and that plaintiff “desperately wanted the film to be made.” The court thus held that “the failure to pay is the conduct from which the claim arises.” The court disagreed with defendants’ contention that for anti-SLAPP purposes, a claim “arises from” all conduct that is a “but for” cause of a claim — including, in this case, the production and release of the films.

Turning to the second question of the inquiry, the Ninth Circuit held that the failure to pay plaintiff was not “in furtherance of the right of free speech” and thus that the anti-SLAPP statute did not apply. The court noted the absence of case law “in which the anti-SLAPP statute has been applied to an ‘idea theft’ claim in which the failure to pay is the alleged breach.” It distinguished a 2016 decision from the Central District of California, Wilder v. CBS Corp., in which the district court granted defendant CBS’ anti-SLAPP motion to strike claims for tortious interference. The Ninth Circuit noted that “[t]he anti-SLAPP motion in Wilder was successful because the activities underlying the plaintiff’s tortious interference claims against CBS were the development, production, and distribution of [CBS’] television show,” which allegedly induced another defendant to breach its implied contract with plaintiff. Here, by contrast, the Ninth Circuit explained that plaintiff “does not allege that any activity involved in creating the films was a breach of his implied contract for compensation with Defendants.”

The court declined to consider the applicability of the anti-SLAPP statute to any claims based on defendants’ alleged failure to credit plaintiff as a writer or creator of “The Purge” films. Though that theory was no longer part of plaintiff’s claim, the Ninth Circuit explained that it may still be relevant on remand to a potential motion for attorneys’ fees by defendants.