Q: Can a writer give a waiver not to sue to a producer to steal their property, since theft is a crime and would be prosecuted in the criminal courts? Is their any civil remedy to the writer for theft?
A: Yes, a writer CAN sign a waiver promising not to sue a producer who misappropriates the writer's property. In fact, unless the writer is represented by an agent (or sometimes an attorney) many producers won't even consider looking at a pitch, treatment, script or whatever, without such a document, usually called a “release”.
These releases are typically very broad, with the writer acknowledging that the producer may have similar or identical material already in development, etc., and promising not to sue if the producer later releases a project resembling (or identical to) something the writer has presented. When representing writers, we lawyers often refer to these releases as ‘licenses to steal', and recommend strongly that our clients do NOT sign them.
You're correct that “theft” is a category of criminal charge. Rare indeed is the criminal theft case alleging theft of a writer's intangible property.
In the context of writers' works, the civil equivalent of a theft charge can take several forms:
1. Copyright Infringement applies when the tangible embodiment of an original work of authorship is COPIED, distributed, performed, displayed or adapted without the author's consent.
2. If the work isn't protected by Copyright law (usually because it's merely an idea, rather than something that's been written out as a treatment, screenplay, etc.), we look to “theft of idea” claims, which actually arise under contract law and tort theories. For example, where the writer makes a ‘pitch' at a meeting with a producer, there may IMPLIED contractual promise of compensation if the producer uses that idea…. Or, better still, an express agreement of compensation. If the producer fails to abide by this agreement, the writer could sue for breach.
There are countless other types of claims which could arise in this context, all depending on the specific facts of the case. As always, if you've got questions about a real legal situation, consult an attorney for custom-tailored legal advice given after careful consideration of your specific situation.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.