Es tiempo, dice el juez en el caso ‘Timeless’

Court advances claim that U.S. television show may have infringed on Spanish hit

Timing’s everything, a federal judge in California has reminded Sony Television and NBC Universal, as he has denied their moves to dismiss a suit against them by Onza Partners, broadcast creatives in Spain.

The partners object to how negotiations they conducted over their Spanish TV hit in the summer of 2015 with a prominent American agent and Sony progressed—or didn’t—to the fall announcement of an NBC show. The Spaniards unsuccessfully filed suit just before the fall 2016 airing of the American production, not necessarily to block its broadcast but certainly to halt its distribution.

The well-rated program, Timeless, waited for no one, and now the creators of El Ministerio del Tiempo, aka the Department of Time, await the calendar for the federal courts to decide if Sony and NBC infringed on their work and breached a contract, as they claim. The dispute may turn on case law that goes back decades in time.

Time travelers

To get up to speed on this case requires some backward time travel.  Onza Partners created and copyrighted their television series, which started airing in Spain in winter, 2015. That year an Onza principal, Gonzalo Sagardia, met Roy Ashton, a prominent American television literary agent at an international TV festival. Sagardia pitched the series to Ashton, giving him a DVD of the first episode and a one-sheet series synopsis. Ashton spoke with two of his TV show-runner clients, who liked the idea. But because they had a first-look deal with Sony Television, it became a new participant in a prospective deal for an American version of the show.

Onza Partners began negotiating with Sony, with Ashton’s writers prospectively developing an American version of the Spanish TV show. But as boxer Mike Tyson once said, “Everyone has a plan until they get punched in the face.” The show negotiations broke down over the summer. Radio silence ensued from Sony. Then in fall, 2015, the trades announced that Ashton’s writers were producing Timeless. Onza and its series went unmentioned, and the Spaniards say in their suit they were ripped off.

Compare: the Timeless logline says it’s about “An unlikely trio travel[ing] through time in order to battle unknown criminals and protect history as we know it.” The Spanish show? “A three-person government team travels through time to change the past.” Coincidence? Sony, NBC, and Eric Kripke, Timeless’ show-runner, asserted that Onza Partners have no claim and filed a motion to dismiss.  U.S. District Court Judge Stephen V. Wilson has denied the dismissal motion. He told the defendants they might better pursue their arguments over copyright infringement, especially the similarities or dissimilarities of the works, via summary judgment. But he sent the case to trial, in large part over the issue of an implied contract, a doctrine important in Entertainment Law and the movie and TV business.

Trafficking in protecting ideas

In the industry, ideas are worth their weight in gold. Writers toil over them, peddling them to producers, who, in turn, listen to myriad pitches—all in hopes of finding the elusive big-money hit. But while ideas may constitute the currency of the business, and make up the livelihood of writers and producers alike, copyright law isn’t exactly kind to these fruits of the mind. Ideas cannot be copyrighted. But the law has ways to ensure that parties can’t steal them from each other.

Sony, to protect itself from Onza’s claim of a breach of implied contract, has turned to a Hollywood favorite: the “blurt-out” defense, relying on a 2012 studio win in a dispute over Premium Rush, a movie based on Joe Quirk’s novel about his days as a San Francisco bike messenger. Warner Brothers optioned his book. Scripts were written, but the project languished in development hell, as occurs with many projects. A few years later, Sony—a different studio—produced Premium Rush, a film involving a Manhattan bike messenger endangered by a criminal plot. Quirk sued Sony, asserting, without evidence, that it must have accessed and read either the Warner scripts based on his book or his book via his agent. His agent worked at the same major agency as the writer of the Sony film. Quirk claimed Sony breached an implied contract to pay for his work. But he lacked proof that Sony had ever obtained his novel or Warner Brothers script.

Desny v. Wilder

Quirk’s claim, though unsuccessful, was based on the 1956 implied contract case Desny v. Wilder, which the court turned against him. The judge, quoting Desny, said Quirk’s wide publication of his novel was akin to an “idea man who blurts out his idea…[T]he law will not in any event, from demands stated subsequent to the unconditioned disclosure of an abstract idea, imply a promise to pay for the idea, for its use, or for its previous disclosure.”

Desny helped set up legal protocols for the entertainment industry on writers submitting ideas—pitches, scripts, and synopses—to producers. It warns writers that they can’t “blurt out” ideas, without first trying to strike a bargain over them, then later crying when they can’t. Desny, dating back to a dispute involving the film production company of legendary writer-director Billy Wilder (photo above), found that a party’s disclosure of an idea can be adequate consideration for the formation of an implied contract. But there also must be, before disclosure of the idea, an express promise to pay, or, based on circumstances, there also may inference of an implied promise to do so. It cautions that if you are a writer with an idea to sell, and you meet with a producer who wants to buy it, that may be sufficient grounds for an implied contact, without any pre-pitch bargaining.

With many cases decided in the area since Desny, writers now must fulfill a rigid list of elements. It is still difficult to win a Desny idea protection claim. Still, studios and producers don’t want to risk a claim even arising, particularly during the hectic TV pitch season when executives may hear up to a dozen pitches a day. To mitigate risk, studios and producers may decline to hear ideas unless an agent, attorney, or a manager represents the writer. Solicited submissions provide a level of protection for producers and studios; unsolicited submissions can be risky, as an unrepresented writer may cry stolen idea and launch a costly suit.

So, didn’t the Onza partners follow all the right steps in their negotiations with Sony, giving them claims and legal remedies against Timeless? (The show, by the way, is on the bubble now as to whether it will be renewed for another season) Or with El Ministerio del Tiempo on the air in Spain did they, as Sony contends, effectively “blurt out” their idea, undercutting their suit? Judge Wilson has expressed doubts about this defense already. But time will tell.