Sandra Richmond is a lawyer at the Toronto law firm of McMillan Binch and a member of the firm's KNOWlaw group. This article was prepared with the assistance of Julie Beeton.

PSST. Wanna buy a hot idea?

Probably one of the most common legal claims in the film and television industry is that someone "stole" an idea for a series or a motion picture from somebody else.

It's a problem that affects people on both sides of a pitch. The "pitchers" are afraid of pitching a great idea to someone only to have the other person use it to produce a show without them. "Pitchees" are afraid that if they have a successful show they'll have to deal with false accusations of stealing ideas.

If you do have, or receive, a hot idea, how do you know what makes it protectable - or not?

In Canada, ideas are not protected by copyright. Copyright law protects only the expression of an idea - the form of the idea when it is recorded (for example, in a song or a poem or a short story).

However, courts in Canada and other countries have used other legal theories to give some protection to ideas. The two most common are breach of confidence and an implied contract.

Breach of confidence

If one person discloses an idea to another person in a business context in order to encourage the second person to participate in a project, the courts may find that the idea is protected by an obligation of confidentiality.

In order to prove that there has been a breach of that obligation, you must establish that:

1. The idea has a quality of confidence.

2. The idea was communicated in such a way that an obligation of confidentiality arose.

3. There has been an unauthorized use of the idea to your detriment.

In the context of establishing whether someone breached the confidentiality of an idea for a film or television production, the first element of the "test" is typically the most difficult to establish.

As to the other elements, courts have often accepted that it is industry custom to expect confidentiality when discussing ideas in the context of pitching. If you can pass the first two tests, the third one is often far more straightforward to meet.

However, to establish that your idea has a "quality of confidence" that should be protected, you must show both that the idea is novel or original and that the idea is not known publicly.

The first requirement - that the idea is novel or original - is the tougher of the two requirements. It is not necessarily true that the idea must be completely different from anything that has been done before. But there must be some distinctive features. And the courts seem to suggest that the extent to which an idea has been developed may be relevant in deciding whether it merits protection.

Novel ideas

In a 1981 Australian case, a film producer prepared a written submission for a broadcaster, which set out in some detail an idea for a television series consisting of programs illustrating the lives of Australian millionaires. Each program was to provide in-depth information about how that particular millionaire had made his or her money and how it was being spent.

The producer and the broadcaster never reached an agreement about doing the series, but some time later the broadcaster aired a series that included segments about the lives of several millionaires. The publicity materials for the show included the statement that "Some of Australia's biggest moneymakers spell out their recipes for success".

The court found that the distinctive feature of the idea was that the successful millionaires themselves gave their recipes for success to the viewers, which had not been done before in Australia.

Although the idea dealt with something that was familiar, the court found that the "commercial twist" or particular slant the producer gave the idea meant that it could not be treated as public knowledge.

A better idea?

It is not always enough, though, simply to take an existing idea and change some element of it.

In a recent U.S. case, the court found that the plaintiff had indeed pitched to Coca-Cola the idea of using polar bears in its advertising and that the company had thought about the idea of using those polar bears for toys, if not for commercials.

But the court also found that the idea of using bears in advertising was not novel. Another company had been using an animated bear to advertise its beverages since the 1960s. Coca-Cola had been using bears in its own advertising since 1923 and the idea for the polar bears had apparently come from the husband of an executive at an advertising agency hired by Coca-Cola.

The court said that simply presenting the bears in a different setting did not make the idea novel - creating a new or better way of doing something that already exists is not sufficient to make something "novel."

Public knowledge

The requirement that an idea not be "publicly known" is also critical. Obviously, the fewer people with whom you discuss your idea, the easier it will be to meet this test.

Years ago, a Canadian court found that when an idea was already known publicly, there was no quality of confidence and the idea could not be protected.

The producer of the music television series Star Chart claimed CBC had used confidential ideas and concepts in producing its own program, Good Rockin' Tonite, a year after CBC cancelled Star Chart.

There were some similarities between the shows. Both used a "video jockey" concept and some aspects of the second series (such as parts of the set) were the same as or similar to Star Chart. However, the CBC series had a longer format and included interviews and bulletins on upcoming local events.

The court found that the idea could not be considered confidential because it was already known and that the programs were essentially dissimilar in how they presented videos.