ABC Wins “LOST” Idea Submission Lawsuit
in Civil Litigation by Stephen Raucher
On March 8, 2013, the California Court of Appeal ruled in favor of ABC in an idea submission lawsuit regarding the television series LOST. Spinner v. American Broadcasting Companies, Inc., 215 Cal. App. 4th 172 (2013). The lawsuit centered on Anthony Spinner’s allegations that an implied-in-fact contract was created when he submitted scripts to ABC in 1977, 1991 and 1994 (although Spinner’s 1991 and 1994 scripts dealt with a spaceship crash, which he admitted were not substantially similar to LOST). Ruling that the uncontradicted evidence showed that ABC independently created the TV series LOST, the Court of Appeal affirmed the trial court’s earlier decision granting summary judgment against Spinner.
Spinner’s 1997 script was tentatively entitled “L.O.S.T.” and revolved around a plane crash similar to LOST. The 1977 script focused on eight survivors connected to the U.S. Olympic team, who crawl through a mountainside tunnel and emerge in a prehistoric world inhabited by dinosaurs and primitive humans – interestingly, an idea itself reminiscent of a different show, Land of the Lost. In addition to the survival aspect of the show, several of the characters in the 1977 script bore some similarities to those in LOST (i.e. a former military man and a spoiled rich girl). The script was deemed too expensive for ABC to produce at the time and thus, was not developed. Spinner alleged that ABC did use his ideas in the 1977 script years later when it developed and produced LOST in 2004.
Ordinarily, an idea can be the subject of an express or implied contract if 1) the plaintiff can show that he clearly conditioned the submission of his idea on an obligation by the defendant to pay for any use, 2) defendant voluntarily accepts submission of the idea knowing of the condition, and 3) the defendant actually uses the idea. When the plaintiff cannot show direct evidence of actual use, an inference of use can be raised by showing defendant had access to the ideas and that the defendant’s work is substantially similar to plaintiff’s ideas. If the plaintiff is able to raise this inference, the defendant can try to dispel the inference with evidence that conclusively demonstrates that the defendant independently created the project. If the defendant can show this, it is appropriate for a court to grant summary judgment on an implied-in-fact contract claim. In this case, the Court rested its holding on 1) Spinner’s insufficient showing of access and 2) ABC’s uncontroverted and conclusive evidence of independent creation.
When analyzing access, the Court assumed for the sake of argument that there were substantial similarities between the 1977 script and LOST. The Court borrowed from the reasoning of copyright infringement cases and concluded that Spinner had only “shown a bare possibility of access based on speculation, supposition, and guess work.” None of the executives involved in the creation of LOST had a reasonable opportunity to view the 1977 Script because there was no evidence that ABC kept a “script library” with old, unreturned scripts. Further, the nexus between the creators of LOST and the people to whom Spinner submitted the 1977 script was weak – none of the individuals around in 1977 were still employed by ABC when LOST was developed.
The Court then summarized the evidence of independent creation assuming that an inference of use had been successfully raised: LOST was originally conceived as the melding of TV show Survivor and the movie Cast Away, the idea was transcribed by ABC during an initial brainstorming session, and various writers wrote and revised the script. Thus, the evolution of the creation process of LOST was well-documented. Additionally, the Court gave weight to uncontradicted declarations by the creators of LOST that they had no connection to or knowledge of Spinner or his 1977 script. Concluding that ABC independently created LOST, the Court put an end to years of litigation nearly three years after the series aired its final episode.