){kind=logo}
Without changing the holding of the case, the California Court of Appeal modified its March 5 decision in this idea submission case to clarify the standard of substantial similarity in claims based on implied-in-fact contracts. (We summarized the court’s original decision on March 12.)
In footnote 5 of its original decision, the court added the following language: “We note that in establishing an implied-in-fact contract or plagiarism, a threshold issue is whether, as a matter of law, there is substantial similarity between the two literary works at issue. The Klekas court indicated that, just as for the tort of plagiarism, in order to prevail on a cause of action for an implied-in-law contract, "there must be some substantial similarity between the screenplay and the protectable portions of plaintiff's work." (Klekas v. EMI Films, Inc., supra, 150 Cal.App.3d at p. 111, italics added.) For an implied-in-fact contract, substantial similarity is also a threshold issue, but there is no requirement that the substantially similar portion of plaintiff's work be, by law, protectable. (Weitzenkorn, supra, 40 Cal.2d at pp. 791-792.) Because of their common element of substantial similarity, we can look to opinions regarding plagiarism and implied-in-law contract to glean criteria for determining substantial similarity in this case.”
The court also modified footnote 7 to read: “As we noted previously, the analysis of substantial similarity is essentially the same in the context of breach of an implied-in-fact contract, as is the issue in the instant action, but the assessment of similarity is not limited to only material which is legally protectable under copyright law.”
In footnote 5 of its original decision, the court added the following language: “We note that in establishing an implied-in-fact contract or plagiarism, a threshold issue is whether, as a matter of law, there is substantial similarity between the two literary works at issue. The Klekas court indicated that, just as for the tort of plagiarism, in order to prevail on a cause of action for an implied-in-law contract, "there must be some substantial similarity between the screenplay and the protectable portions of plaintiff's work." (Klekas v. EMI Films, Inc., supra, 150 Cal.App.3d at p. 111, italics added.) For an implied-in-fact contract, substantial similarity is also a threshold issue, but there is no requirement that the substantially similar portion of plaintiff's work be, by law, protectable. (Weitzenkorn, supra, 40 Cal.2d at pp. 791-792.) Because of their common element of substantial similarity, we can look to opinions regarding plagiarism and implied-in-law contract to glean criteria for determining substantial similarity in this case.”
The court also modified footnote 7 to read: “As we noted previously, the analysis of substantial similarity is essentially the same in the context of breach of an implied-in-fact contract, as is the issue in the instant action, but the assessment of similarity is not limited to only material which is legally protectable under copyright law.”