The Briefing by the IP Law Blog


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February 22, 2023 The Briefing Podcast: Ninth Circuit Agrees with Woz – No Promise to Pay, No Desny Claim

The 1950 case Desny v. Wilder set the ground rules for an idea theft/implied contract case in California. In Desny, the plaintiff Victor Desny wrote a script depicting the real-life story of Floyd Collins, a boy who made headlines after he was trapped in a cave 80 feet underground. In an effort to market his script, Desny called Billy Wilder, a writer, producer and director at Paramount Pictures. Desny could not get through to Wilder and subsequently stripped his script to the bare facts so that Wilder’s secretary could copy it in shorthand over the phone. After reading his synopsis, Desny told Wilder’s secretary that Wilder and Paramount could use the script only if they paid him a reasonable amount for doing so. Shortly thereafter, Wilder created his own movie script mirroring Desny’s. Because Desny’s script was based on historical facts, and because Desny only conveyed the bare minimum of those facts to Wilder’s secretary, both parties conceded for the purpose of the appeal that the synopsis was not sufficiently original to form the basis of a federal copyright claim. The court, however, held that Desny stated sufficient facts to establish the existence of an implied-in-fact contract between the parties.

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The Briefing by the IP Law Blog and The IP Law Blog are publications of Weintraub Tobin. The Briefing by the IP Law Blog provides insight in connection with copyrights, trademarks, patents, trade secrets, false advertising, licensing, promotions, and sweepstakes. The series’ objective is to serve as a forum to discuss IP strategies that provide protection to a business’s or person’s intangible assets. The videos and podcasts are for informational purposes only and do not constitute legal advice. Video versions of The Briefing can be viewed on the Weintraub Tobin Vimeo page.

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