Game lawyer Zachary Strebeck takes a look at the potential liability that can come from accepting unsolicited ideas. Some ways for a company to protect themselves are also discussed.
Unsolicited ideas are common in many of the entertainment industries, from people pitching movie ideas to suggesting improvements to a game or software product on forums. While the temptation to make use of these ideas is strong, there may be issues. Here’s a look at the potential legal issues and some of the ways around them.
Making use of an unsolicited idea may still lead to legal liability for the use of that idea. This is because, even though there is no contract between the parties, there are legal theories that create a contract between the parties in some instances:
When receiving the unsolicited idea, the recipient may have given some kind of express contract, whether through a series of emails or even through words;
Quantum Meruit or an implied contract could lead to a court finding that, in the absence of a written agreement, a fair amount of money is owed for the use of the idea; or
A court may also find that, by using the unsolicited idea, the recipient was unjustly enriched and owes damages to the person submitting that idea.
In industries where it is customary to pay a fee for ideas that are used, this can be expected and could be ordered by a court. If the person submitting the idea has some kind of patent or copyright protection on their idea, there could be an action for infringement of that idea, as well.
There are a few ways to get some protection when receiving unsolicited ideas. First, the company should have a uniform submission policy in place. Different companies have different policies, depending on whether they wish to receive unsolicited submissions or not. If they do, the policy could be either prominently displayed on the company’s website or as part of an automated idea submission process. The policy should contain some of the following provisions, for example:
The company gains ownership of any submitted ideas, concepts or materials;
The company is not under any confidentiality agreements in connection with the submission;
The company is not liable for any use of the idea and there is no compensation right on the part of the submitter.
In addition, a written submission agreement is another option for taking unsolicited ideas. Before taking a meeting with someone over their ideas and before the idea is revealed, the agreement should be signed by both parties. This agreement should include the same provisions as the uniform submission policy outlined above, among others. It is also important to keep records of any interactions with the submitter, including proof of their agreement to the submission policy.
Some submitters want the company to sign a confidentiality agreement protecting their submitted idea. However, this is generally a bad idea and companies should avoid doing this. Some courts have found that signing such an agreement creates an implied duty to compensate the submitter for their idea. This doesn’t mean that an agreement cannot be entered into after the idea has been revealed, though.
For those who are taking ideas or pitches, an attorney may be able to help them develop an agreement that protects their rights while allowing them to take that unsolicited idea. For info on other gamedev legal topics, check out my free eBooks.
photo credit: Daniel Dionne and meticcio via photopin cc
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