Kelley Drye Requests Publication of Ousley v. Krasnow
August 10, 2011

Los Angeles partner Lee S. Brenner, in conjunction with the Motion Picture Association of America (MPAA), filed a request with the California Court of Appeal that the Court publish its written opinion in Ousley v. Krasnow, Case No. B222726, an unpublished case that offers clarity in the field of idea submission law.

Mr. Brenner submitted the request on behalf of Home Box Office, Inc.; California Broadcasters Association; CBS Broadcasting Inc.; CBS Films Inc.; CBS Studios Inc.; Showtime Networks Inc.; and Turner Broadcasting System, Inc. These major U.S. cable and television networks, studios and a trade association representing the interests of state television broadcasters, requested that we file the request for publication because they are affected by “idea theft” lawsuits. The request was also brought by the six major motion picture studios that the MPAA represents: Walt Disney Studios Motion Pictures; Paramount Pictures Corporation; Sony Pictures Entertainment Inc.; Twentieth Century Fox Film Corporation; Universal City Studios LLC; and Warner Bros. Entertainment Inc.

In Ousley, a stranger approached an entertainment executive at a public event, purported to pitch him an idea, and then later claimed the existence of a contract. The Court of Appeal rejected the plaintiff’s claim, relying on the “blurting” doctrine originally articulated by the California Supreme Court in Desny v. Wilder, 46 Cal. 2d 715 (1956). The blurting doctrine represents an important caveat to the circumstances in which an implied-in-fact contract for conveyance of an idea may be recognized. It provides that one who freely conveys an idea without an implied promise to pay for its use cannot seek relief based on a theory of implied-in-fact contract:

The idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power. The law will not in any event, from demands stated subsequent to the unconditioned disclosure of an abstract idea, imply a promise to pay for the idea, for its use, or for its previous disclosure.

Desny, 46 Cal. 2d at 739. A clearly-delineated blurting doctrine protects the ability of entertainment industry members to interact with the public without being subjected to specious idea theft suits. Although the blurting doctrine has been the law since Desny, published cases actually applying the doctrine to limit a plaintiff’s claim are exceedingly rare. Indeed, the last case that rejected a plaintiff’s claim based on the blurting doctrine is Faris v. Enberg, 97 Cal. App. 3d 309 (1979), which was decided 32 years ago. These factors strongly favor publication of the Ousley decision.