Sons of Anarchy is a television show about a motorcycle “club.” It was created by Kurt Sutter and originally began airing in 2008 on FX. Chuck Zito, a former “Hells Angel” chapter member, also developed his own television program about a motorcycle club called “The Wild Angels.” Zito’s show never made it to production, but Zito had pitch meetings with FX executives back in 2004. At that time, Sutter was loosely involved with FX, doing some work with their prior show The Shield, but never really had significant interactions with Zito or FX executives in relation to the pitch. As I am sure you can guess, once Sons of Anarchy became a success, Zito brought a copyright lawsuit against Sutter and FX, claiming he was the originator of the show and they stole the idea.

In response to the lawsuit, Sutter posted on his twitter account in frustration, “HAVING THE F***ING IDEA IS NOT THE SHOW. THERE HAVE BEEN DOZENS OF OUTLAW MOTORCYCLE TV DRAMAS PITCHED IN THE LAST TEN YEARS. NONE OF THEM HAS MADE IT TO SERIES, EXCEPT SOA BECAUSE THEY SUCKED.” Sutter and FX subsequently put on a significant defense to the accusations where Sutter, FX executives, and other outside talent agents testified about the development process, and how Sutter turned an idea about a motorcycle gang, into the complex plot and themes that permeate through the show today. In December 2011, the Judge in the case granted a summary judgment to FX and Sutter, as he determined Sutter developed the idea independently and neither he nor FX stole the idea.

There are a few things to learn here (other than following Sutter on twitter would be fun). There can be no copyright infringement without “copying.” This sounds like an obvious statement, but it is not. After years of decisions, the Courts of the United States have crafted significant rules and exceptions to the copyright code indicating that if something is “substantially similar” to another piece of work, “copying” can be inferred between the two pieces of work. This means one does not need direct evidence of “copyright,” or “stealing,” another’s work, if the two works are incredibly alike. There are a variety of other hoops one has to jump through to get to this analysis, such as sufficient “access” to the original work (such as, FX had access to Zito’s ideas through his pitch), but this blog isn’t intended for a complete academic discussion, just a practical one.

Using our example, did Sutter copy Zito? Is there evidence of direct copying, or are the works overall substantially similar? Think of what Sutter said. The idea of a show about a motorcycle game is not unique, novel, or new. It is just a setting for a story, and settings cannot be copyrighted. Copyright law is meant to protect new and novel expression, not “scenes a faire,” that are merely incidental backdrop elements to a creative work. What is copyrightable, is the unique creative content, i.e. the plot, dialogue, and themes, that is contained within the setting. The Court found that Sutter’s show did not contain the same elements as Zito’s show and therefore there can be no copyright infringement even if Zito’s “idea” about a motorcycle gang show occurred before Sutter. This does not mean one can run around carelessly and pitch show after show based on other’s work or networks can steal the “scenes a faire” of every pitch and develop their own program, there could be contractual or other claims involved with the disclosure of ideas and pitches, but what can one do to protect themselves from claims of copyright infringement on the creation side of the Work?

It does not have to be fancy, but keeping a detailed headcount of those to whom you showed your work to at the preliminary stages, and keeping a production journal (and even saving new drafts of the work in different files all with their own date stamp) does create some basic level of ‘chain of title’ to the work where if allegations of copyright infringement occur in the future, you have something to fall back on – your own unique independent creation. (Of course, registering the copyright to your work, both with the Copyright Office and various industry guilds is another blog and clearly, another thing any Author should do before entering significant pitch meeting with any production entity, rewriter, etc). This is not a perfect solution, nothing really is in today’s modern world where content creation (and theft) is so easy with the advance of technology, but it is a practical one. Remember, the first sign of success in business is you get sued. Unless you have an incredibly unique idea, chances are your pitch will contain elements of other shows or pitches a network has seen and heard of before, so this issue will come up for any successful Artist in any creative industry. Five minutes of time every week documenting the creation of your work is well worth an Artist’s time to help protect the work itself

Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2011 Bradley Legal Group, P.A.