Court of Appeals, California, 2nd Appellate District, Division 8, March 8, 2013

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  • California Court of Appeal affirms summary judgment in favor of defendant ABC on plaintiff’s Desny claim, finding that ABC established lack of access to plaintiff’s script and that ABC independently created television show Lost.

Plaintiff Anthony Spinner brought suit against ABC asserting a Desny claim for breach of an implied contract, alleging that ABC used his idea, contained in a script he submitted to them in 1977, to develop and produce the hit television show Lost. The lower court granted ABC’s motion for summary judgment, and the Court of Appeals affirmed, finding that plaintiff had failed to produce sufficient evidence that ABC had access to his materials and finding that ABC had established independent creation of the show.

In 1977, ABC retained Spinner to write a two-hour pilot tentatively titled L.O.S.T., a show based on people stranded in impossible circumstances, how they would survive, and the strange adventures they would have. He submitted the script, but ABC eventually passed on the project. Spinner resubmitted his idea in 1991, and ABC passed on that treatment. In 1994, he resubmitted the same idea, again with the same result. In early 2003, while on vacation in Hawaii, Lloyd Braun, the then-chairman of ABC Entertainment Television Group, came up with the concept for Lost – a television show that was to be a marriage of the 2000 movie Cast Away, the reality show Survivor, and the older TV show Gilligan’s Island. In July 2003, he pitched this idea to other executives at a brainstorming session during an ABC retreat – a meeting that was transcribed – and hired Jeffrey Lieber to draft an outline for the proposed pilot. Braun did not like Lieber’s draft and subsequently hired J.J. Abrams and Damon Lindelof. On January 12, 2004, Lindelof, Abrams, two ABC executives, and three others who worked on Abrams’ show Alias met and exchanged ideas for the show. Lindelof drafted six pages of notes memorializing the ideas discussed at the meeting and circulated them by email to the attendees after the meeting. Because ABC wanted the show to premiere during the 2004-2005 season, Lindelof and Abrams needed to draft an outline quickly to send to ABC. The team worked on the outline January 13-January 16, 2004, and on the 16th Lindelof sent a final version of the outline to ABC. Braun called Lindelof the next day and told him that ABC was going to produce the pilot. In January and February 2004, Lindelof and the team developed the pilot script, which was first submitted on February 24, 2004. The script was revised numerous times, and ABC accepted the final version on April 19, 2004. By early May 2004, the writers had created a bible of the show that described its general format, various elements, character biographies, and approximately 30 ideas for the future of the show. In September 2004, ABC premiered the pilot for Lost.

Spinner filed suit in July 2009 for breach of an implied-in-fact contract. He alleged the contract was created when ABC solicited the 1977 script, he submitted the script with the reasonable expectation of payment if ABC used it, ABC accepted it knowing that he expected payment, and ABC used it. He further alleged that ABC had access to and used his 1977 script to develop and produce Lost, and that he is due an ongoing royalty for ABC’s use of the ideas in the 1977 script. ABC moved for summary judgment, arguing that it did not use Spinner’s ideas from his 1977 script in developing and producing Lost. The appellate court agreed, holding that ABC negated Spinner’s claims by providing sufficient evidence to establish both that it did not have access to Spinner’s 1977 script and that the script for Lost was created independently.

In California, in order to prevail on a cause of action for breach of implied-in-fact contract, Spinner must show that (1) he clearly conditioned the submission of his idea on an obligation to pay for any use of his idea; (2) ABC, knowing this condition before Spinner disclosed the idea, voluntarily accepted the submission; and (3) ABC found the idea valuable and actually used it – that is, based its work substantially on Spinner’s idea rather than on its own ideas or ideas from other sources. Because Spinner had no direct evidence of use, he needed to show use by inference – by demonstrating that ABC had access to his idea and that Lost is substantially similar to his idea. Evidence of access and substantial similarities that raise an inference of use may be dispelled by ABC’s showing that it had independently created Lost, however.

The court first found that Spinner failed to show that ABC had access to his idea. Under California law, defendants must have had an opportunity to view or copy the plaintiff’s work, and where there is no direct evidence of access, plaintiff must show a sufficiently strong nexus between the intermediary to whom he submitted his work and the creators of Lost. The relationship linking the intermediary and the creators requires more than the mere fact that they share a common employer. Spinner’s evidence is insufficient, according to the court, because he relied on a bare possibility of theoretical access premised on mere speculation. Though ABC has a retention policy to keep all scripts not returned to the authors, ABC never found the 1977 script in its files. Further, while the executives at ABC to whom Spinner presented and submitted his idea and script shared a common employer with the creators of Lost, they were not employed at the same time. Last, the creators of Lost stated that they have never spoken with or received any materials from any of the executives at ABC to whom Spinner presented and submitted his idea and script.

The court then also found that ABC demonstrated it had independently created Lost and that Spinner failed to contradict any of that evidence. Direct testimony and sworn statements of witnesses who were involved in the independent creation of the product, as well as contemporaneous correspondence and other papers documenting the creation process, are sufficient under California law to demonstrate independent creation. Here, the key creators of Lost all gave sworn statements as to the creation of the show, and ABC produced emails and transcripts of meetings regarding the development of Lost as well as evidence of the process of the creation of Lost – from the original idea to the pilot outline to drafts of pilot scripts to the final pilot script and show bible.