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Parsing the Copyright Preemption Issue in Claims for Breach of Implied-in-Fact Contracts

By Stan Soocher

The U.S. Court of Appeals for the Ninth Circuit recently reconfirmed the long-established principle that, under California law, an implied-in-fact contract claim over an alleged promise to pay for use of an idea or concept isn't preempted by federal copyright law. Montz v. Pilgrim Films & Television Inc., 98 U.S.P.Q.2D (BNA) 156 (9th Cir. 2011). But for years, many studios have required parties to sign submission agreements that limit studio liability when ideas, concepts and scripts are pitched to the studios. Notably, the Ninth Circuit's decision in Montz was a reminder of the different approach that courts in the Second Circuit have taken in finding whether implied contract claims are subject to copyright preemption.

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