Landmark “Idea Theft” Court Decision Secured by KGSW

November 17, 2017

By: Glen Kulik

Ninth Circuit Denies Rehearing of Decision Holding that an “Idea Theft” Claim is Not Subject to an Anti-SLAPP Motion

For over 50 years, California has protected a writer’s ideas and concepts embodied in scripts under the so called “Desny-claim.” On November 17, 2017, the United States Court of Appeals for the Ninth Circuit took a significant step in ensuring that Desny-claims remain a viable option for artists suing studios for “idea theft” by denying Universal Studios’ Petition For Rehearing in the Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184 (9th Cir. 2017).

Jordan-Benel is the first published decision of any court in the United States on the issue, and it represents a major victory for artists in California who were threatened with having to pay the studios’ exorbitant attorney’s fees in connection with an anti-SLAPP motion.

KGSW represents the writer, Douglas Jordan-Benel, who filed suit in 2014, alleging that the horror hit film, “The Purge,” incorporated ideas and concepts embodied in his script entitled “Settler’s Day.” Universal Studios and other defendants responded by filing an anti-SLAPP motion arguing that Jordan-Benel’s idea theft claim challenged their right of free speech of creating and distributing a film. The District Court denied the anti-SLAPP Motion on the grounds that Jordan-Benel was seeking payment for his ideas, not trying to interfere with defendants’ right to create and distribute movies.

On June 20, 2017, the Ninth Circuit affirmed the lower court’s decision. After the studio filed a Petition for Rehearing, the Ninth Circuit ordered attorneys for Jordan-Benel to file a response, signaling the Court’s intention to reconsider its prior ruling.

Today, the Ninth Circuit issued an Order denying the Petition for Rehearing and conclusively established that an artist’s idea theft claim – the so called “Desny-claim” — is not subject to the anti-SLAPP statute because it is based on a studio’s alleged failure to pay the artist for his or her ideas. In sum, the Ninth Circuit squarely held that an artist’s most significant state-law protection for his/her literary or artistic ideas remains an available option under California law, and there is no need to fear the threat of having to pay the studios’ exorbitant attorney’s fees and enduring endless appeals in connection with an anti-SLAPP motion.

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