‘Lost’ Royalties Demand Had Smoke but no Fire


     (CN) – A producer cannot seek “Lost” royalties because he failed to show that the show’s creators knew anything about a plane-crash idea he conceived 35 years earlier, a California appeals court ruled.
     Anthony Spinner, who received an Emmy nod for executive producing “Baretta” in the 1970s, is a former creative vice president at Fox Television. In 1977, ABC solicited a script Spinner had titled “L.O.S.T.,” which revolved around a group of eight connected to the U.S. Olympic team who survive a plane crash deep in the Himalayas. Among the survivors are five athletes, one doctor, a TV reporter and the pilot.
     In Spinner’s script, a former military man assumes leadership of the group, but a strong-willed fellow survivor with a quick temper challenges that role. With the plane’s radio smashed, the survivors seek shelter in a craggy tunnel in the mountainside and come out in a prehistoric world inhabited by dinosaurs and flying reptiles.
     ABC passed on the project, telling Spinner the project was far too expensive to produce. The executives who solicited “L.O.S.T.” left the network shortly afterward, though ABC admits it retains Spinner’s script to this day.
     Spinner resubmitted his idea to ABC in 1991, though executives in place at that time suggested he change the title and give the project a new spin to sell it to the network. ABC passed on Spinner’s “Outer Space Treatment” and rejected him a second time when he tried to sell the project to different executives in 1994.
     Lloyd Braun, a onetime chairman of ABC Entertainment Television Group, came up with the idea for “Lost” while vacationing in Hawaii in early 2003. Braun envisioned the show as a blend of the Tom Hanks film “Cast Away” and the television reality series “Survivor.”
     Braun pitched the idea to the network as parts “Cast Away,” “Survivor” and “Gilligan’s Island,” with a “Lord of the Flies” element. Later that year, contract writer Jeffrey Lieber submitted his first outline of Braun’s idea, which featured a small cast of plane crash survivors stranded on a seemingly deserted island and competing for leadership roles and limited medical supplies.
     Lieber’s core characters included a pregnant woman, a calm and collected older gentleman, a con man, a doctor, a drug addict, a spoiled rich girl and a military officer. Shortly after Lieber’s submission, however, Braun turned to J.J. Abrams and Damon Lindelof. Their version ultimately ran for six seasons on ABC.
     Spinner sued ABC in Los Angeles County Superior Court shortly before “Lost” ended its run, alleging breach of implied-in-fact contract with regard to its 1977 solicitation of his script. He claimed ABC had used his 1977 ideas to develop and produce the hit show, ABC argued that it did not have access to the 1977 script and that “Lost” was created independently.
     The trial court ultimately granted ABC summary judgment, and a three-judge panel of the Second Appellate District affirmed Friday, finding that, generally, ideas cannot be copyrighted and that Spinner’s argument of inference of use failed in the light of ABC’s evidence of independent creation.
     “Even if we assume for the sake of argument that there are substantial similarities between the 1977 script and ‘Lost,’ we agree with the trial court that ABC presented conclusive and uncontradicted evidence of independent creation so as to negate the use element of Spinner’s cause of action,” Judge Madeleine Flier wrote for the panel. “Moreover, the independent creation defense is bolstered by the fact that Spinner’s so-called evidence of access is actually speculation, conjecture or guesswork, which weakens any inference of use that ABC must dispel.”
     Specifically, the panel rejected Spinner’s claim that “Lost” creators could have viewed his script because of ABC’s policy of permanently retaining unreturned scripts somewhere in a “script library” at the network.
     “This is guesswork,” Flier wrote. “First, despite the 1972 retention policy Spinner cites, ABC never found the 1977 script in its drama development files. This is perhaps unsurprising, given the passage of time between Spinner’s 1977 submission on the one hand and the creation of ‘Lost’ and this lawsuit on the other. Second, Spinner refers repeatedly to a so-called script library at ABC, but there is no evidence that there was a centralized library of sorts the executives could access and search. The existence of a script library is supposition based on ABC’s 1972 policy that it will permanently retain unreturned scripts.”
     Flier also found no strong nexus between the people to whom Spinner submitted his work and the actual creators of “Lost.”
     ABC meanwhile presented “clear, positive and uncontradicted” evidence of the show’s independent creation, the court found.
     “Documented in the record is the evolution of the ‘Lost’ pilot from six pages of notes to a 90-plus page script, over the course of approximately three months (from Jan. 13, 2004, to April 19, 2004),” Flier wrote. “This is supported by the declarations of Abrams and Lindelof and voluminous exhibits thereto.”
     She added: “Moreover, the key players involved in creating ‘Lost’ – Abrams, Lindelof, Lieber, and Braun – have declared that (1) they knew nothing of Spinner, his 1977 script, or his Outer Space Treatment until this lawsuit; (2) they did not have his script or treatment while working on ‘Lost;’ and (3) no one ever mentioned his script or treatment to them.”
     Spinner moreover never contradicted these declarations during the trial, and did nothing to counter ABC’s evidence detailing the creation process of “Lost,” according to the ruling.
     “In sum, the evidence that ABC independently created ‘Lost’ is clear, positive and uncontradicted,” Flier wrote. “This is sufficient to hold that ABC established the independent creation defense as a matter of law.”

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