Idea Theft in Hollywood: Submission & Desny Claims

You had the idea first. You pitched it in a meeting, sent a treatment, or talked it through with a producer’s assistant — and months or years later something that looks a lot like your concept shows up on screen, with someone else’s name on it. It is one of the oldest and most painful stories in Hollywood, and the law’s answer is more nuanced than “you can’t protect an idea” or “they stole it, so sue.”

The honest version is this: U.S. copyright law usually will not help you with a raw idea. But California has spent nearly seventy years building a separate doctrine — the idea-submission or “Desny” claim — that can protect your right to be paid when you pitch something for sale and a studio uses it. This guide explains the difference, what you actually have to prove, and how to protect yourself before you walk into the room. For the bigger picture, start with the Entertainment & media IP pillar.

Why copyright doesn’t protect ideas

The single most important rule for anyone pitching in Hollywood: copyright does not protect ideas. It is right there in the statute. Under 17 U.S.C. § 102(b), copyright protection never extends “to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described.” This is the idea–expression distinction, and it is foundational to all of copyright law.

What copyright does protect is your specific, original expression once it is fixed in a tangible form — the actual dialogue, scenes, sequence of events, distinctive characters, and structure of a finished script or treatment. So copyright can stop someone from copying your screenplay. It cannot stop someone from making a movie about, say, “a heist crew of grandmothers” or “a shark terrorizing a beach town” just because you pitched that concept first.

That is why pure idea-theft cases so often lose on copyright grounds. If the studio took your concept but wrote its own script, the expressions differ, and a copyright infringement claim usually collapses. (If they copied your actual words and structure, that is a different conversation — see how to protect a screenplay or script.) The gap this leaves — a real concept, real value, real use, but no copyright remedy — is exactly the gap California’s implied-contract doctrine was built to fill.

The Desny implied-in-fact contract doctrine (California)

In Desny v. Wilder, 46 Cal.2d 715 (1956), the California Supreme Court confronted that gap head-on. Victor Desny pitched director Billy Wilder a story idea — based on the real-life saga of a man trapped in a cave — to Wilder’s secretary by phone, saying he expected to be paid if it was used. Wilder later made Ace in the Hole, a film about a man trapped in a cave. Desny couldn’t win on copyright (you can’t copyright the idea of a man trapped in a cave). So the court asked a different question: did the parties form a contract?

The court’s answer reshaped entertainment law. It held that even without an express promise, a contract to pay can be implied in fact from the circumstances surrounding the pitch — the conduct of both sides showing a mutual understanding that the idea was offered for sale and would be paid for if used. Crucially, the claim does not depend on the idea being novel, original, or protectable as property. It depends on the bargain: you sold, they bought, they should pay.

Decades later, the Ninth Circuit applied California’s Desny rule in Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004). Jeff Grosso submitted his poker-world screenplay The Shell Game; Miramax later released Rounders, also set in the world of high-stakes poker. His copyright claim failed — but the Ninth Circuit revived his California implied-contract claim, confirming that a Desny claim can proceed independently of copyright. Grosso is the case most often cited today for the proposition that a Hollywood idea-submission claim is alive and well under California law.

A related preemption fight reinforced the point. In Montz v. Pilgrim Films & Television (9th Cir. 2011, en banc), the court held that a Desny-style implied-contract claim is not preempted by federal copyright law, because it contains an “extra element” — an agreement to pay for the use of the idea — that makes it qualitatively different from a copyright claim. More on that below.

What you must show to win a submission claim

A Desny claim is not a magic wand for anyone who once had a similar idea. California courts generally require a plaintiff to show several things, all rooted in contract:

• You submitted the idea for sale. You offered it expecting compensation — not as a free spitball, a social conversation, or a “wouldn’t it be cool if” aside.
• The condition of payment was clear (or should have been). You made it understood that use of the idea was conditioned on payment, before or at the time of disclosure. This is the step casual pitchers most often miss.
• The recipient knew the terms and voluntarily accepted the disclosure. They had a real chance to reject the pitch but instead took it, knowing you expected to be paid if they used it. An unsolicited script mailed to someone who never agreed to receive it on those terms is a weak case — that is essentially why Grosso’s facts were scrutinized so closely.
• They actually used your idea. There must be a real connection — access plus substantial use — between what you pitched and what they made. Independent creation is a complete defense.
• The idea had value. It need not be novel or unique, but it has to be the kind of thing the market pays for.

Two practical realities follow. First, how you pitch matters as much as what you pitch. A documented, conditioned-on-payment submission is far stronger than a hallway chat. Second, these are fact-intensive cases that often turn on who said what, when, and to whom — which is why contemporaneous records (emails, dated treatments, meeting notes) are so valuable.

Submission releases and NDAs

Two kinds of paperwork dominate the pitch world, and they pull in opposite directions.

An NDA (non-disclosure agreement) is something you generally want before disclosing a concept. A well-drafted NDA creates an express written promise of confidentiality — and sometimes payment — converting a fuzzy implied understanding into a clear, enforceable term. If you can get one signed before you pitch, you are in a stronger position than relying on Desny alone. (For the mechanics, see getting an NDA before pitching your invention, which covers the same principles that apply to creative pitches.)

A submission release, by contrast, is something the studio wants you to sign — and it usually works against the person pitching. Before they will read unsolicited material, many companies require a release that typically: states the company may already be developing or may later develop similar material; disclaims any confidential relationship; says you will be owed nothing unless you have independently enforceable rights (like a registered copyright in actual expression); and limits or waives the very implied-contract claims Desny would otherwise give you. Signing one can sharply narrow your remedies. Read every line before you sign, and have an attorney licensed in your jurisdiction review anything high-stakes.

Why studios use release forms

From a studio’s perspective, release forms are risk management, not malice. Studios receive an enormous volume of pitches and submissions, and they are constantly developing projects internally and from many outside sources. Without releases, every passing similarity between an incoming pitch and an in-development project becomes a potential lawsuit — exactly the Desny/Grosso exposure described above.

So studios use submission releases to: document that material was unsolicited; disclaim any implied promise to pay or to keep things confidential; preserve their freedom to develop similar ideas that arrive independently; and channel disputes into narrow, defined terms. It is the legal system’s predictable response to a doctrine like Desny: where the law implies contracts from conduct, sophisticated parties write express contracts to control that conduct. Understanding that dynamic helps you read a release for what it is — a shifting of risk onto you — rather than boilerplate to sign without thought.

How to protect yourself before pitching

You can meaningfully improve your position before you ever walk into the room:

• Fix and register your expression. Put the concept into a written treatment, outline, or script and register it with the U.S. Copyright Office. That won’t protect the idea, but it protects your expression and timestamps your authorship — a foundation if actual copying occurs. See how to protect a screenplay or script.
• Make the payment condition explicit — in writing. Before or at disclosure, state that you are submitting the material for sale and expect to be compensated if it is used. A short confirming email after a meeting can be powerful evidence of a Desny understanding.
• Try for an NDA first. Especially with smaller production companies and individuals, ask for a confidentiality or submission agreement on your terms before you reveal specifics.
• Read releases before signing. If a studio requires a release, know what you may be giving up. Don’t assume it is unnegotiable, and don’t sign a rights-waiver you don’t understand.
• Keep a paper trail. Dated drafts, registration certificates, pitch decks, emails, and meeting notes turn a “he said / she said” into a documented submission.
• Pitch to the right people, the right way. A targeted, conditioned, documented submission to someone who agreed to receive it is far stronger than an unsolicited script mailed cold.

The bottom line

Hollywood “idea theft” sits in a genuine gap in the law. Copyright won’t protect a bare idea — only your fixed expression, under 17 U.S.C. § 102(b). But in California, the implied-in-fact contract doctrine from Desny v. Wilder, reaffirmed in Grosso v. Miramax and shielded from copyright preemption in Montz v. Pilgrim Films, can protect your right to be paid when you pitch an idea for sale and a studio uses it. The catch is that this is a contract claim built on how you pitched — so the way you submit, document, and condition your idea often decides whether you have a case at all. Desny is a California doctrine; the law varies by state, and the details are everything.

This guide is general education about intellectual property law, not legal advice, and it does not create an attorney–client relationship. It is not a solicitation for legal services. Laws and their application vary by jurisdiction and change over time. For advice about your specific situation, consult an attorney licensed in your jurisdiction.