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Magazines > Information Today > October 2016

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Information Today
Vol. 33 No. 8 — October 2016
What to Do With a Really Good Idea
By George H. Pike

While I think that I’m a pretty smart person, I don’t think I’m terribly creative. I have a hard time coming up with good stories to use as hypothetical problems for in-class assignments. When I watch TV or movies, I often ask myself, “How did they come up with that idea?” When I go to the store and see some new product, I’ll think—as many people likely do—“That’s clever” (or “awful,” depending on the product). And I’ll wonder, “How did they come up with that?”

So, people who are more creative than I am can have some amazing ideas. Sometimes, the people who come up with these ideas are working for the company or business that needs them to be generated, whether it’s a TV or movie studio, manufacturer, distributor, or marketing department. However, when the creative mind is not an employee, but instead brings his or her ideas to the company, complications can ensue.

My Little Pony

One such creative enterprise is the toy industry. From Lincoln Logs and the Chutes and Ladders game that I played with as a kid, through to the latest generation of Transformers and Barbies, to a popular new game called Pie Face!, toys are an $84 billion industry that relies heavily on ideas. In September, a trial began involving My Little Pony Rainbow Shimmer, a plastic unicorn doll filled with a glitter liquid and sold by Hasbro. Inventor Elinor Shapiro claims that this toy was her idea.

Shapiro says she came up with the concept of snow globe animal characters. A former executive in the toy industry, she pitched the idea to Hasbro, which passed on it. A year later, Shapiro saw a My Little Pony Rainbow Shimmer and sought compensation from Hasbro. When no agreement could be reached, she sued the toy manufacturer.

Lonely Stepchildren

Ideas are somewhat the lonely stepchildren of intellectual property in that they are tangentially related to its two major areas—copyright and patent—but don’t get full protection from either of them. Copyright law specifically denies any copyright protection for ideas. Section 102 of the Copyright Act ( states, “In no case does copyright protection for an original work of authorship extend to any idea. ...” The reason for this is that copyright is intended to protect creative expression—the manifestation of an idea in a tangible form—while leaving the underlying idea free to be used by others. James Cameron can have a great idea for a story about two people from different social classes who meet and fall in love on a doomed ocean liner, only one of whom will survive (guess which one). But until that idea is expressed in the script and movie Titanic, nothing is copyrighted.

But as with much of the law, it may not be quite so clear. In 2005, actor Hayden Christensen and his brother had an idea for a television show named Housecall, which involved a physician who serves as a “concierge” doctor to the rich and famous of Malibu, Calif. Their production company developed a number of written products—all of which would be clearly copyrighted—and pitched the idea to the USA Network, which declined. Four years later, USA debuted Royal Pains, a show about a concierge doctor to the rich and famous of the Hamptons in New York.

Instead of pursuing a case of copyright infringement, the Christensens sued for breach of implied contract. They said it’s accepted in the industry that creative ideas are presented for prospective purchase, and an expectation exists that compensation would be paid if the ideas are used. The network said the suit was really about the idea and that Section 102 required it to be dismissed. A court upheld the suit and determined there was a distinction between copyright and contract. It ruled that such a case could go forward when the person who submitted the idea could show that there was an express or implied contract to pay for the idea and that it was submitted in confidence with that expectation. The case was later settled out of court.

Inventing or Discovering

Patent law poses a similar problem: The patent is granted only for the embodiment of an idea, not necessarily for the idea itself. Section 101 of the Patent Act gives a patent to “[w]hoever invents or discovers any new and useful process, machine, manufacture or composition of matter. ...” This sounds promising in that it necessitates inventing or discovering, but it still requires that an idea be fleshed out to something specific enough to be considered an invention. It is no coincidence that, unlike for copyrights, obtaining a patent involves an extensive and complex application, which is then reviewed by patent examiners over a period that stretches from months to years before a patent is granted.

Patent law presents an additional and rather insidious problem. If pitching an idea for a copyrightable work such as a TV series or toy might create some protection through an implied contract, as in the Housecall/Royal Pains case, pitching an idea for a patented product might cause one to lose his or her patent rights. Under current law, the inventor who is the first to file a patent application can get the patent. So sharing your idea with others can give them a head start to the patent office.

Available to the Public

Even presenting an idea to friends or colleagues can put it at risk. In order to be considered new, an idea can’t be previously “described in a printed publication ... or otherwise available to the public,” according to the Patent Act. In one case in which a prototype version of a toy was shown to party guests to get feedback, the toy was determined to have been made “available to the public,” and the patent was denied.

The takeaway from the My Little Pony, Housecall/Royal Pains, and similar cases is that being creative and coming up with good ideas is only the first step. Before sharing ideas with others, whether for feedback, potential sale, or commercial use, take some additional steps to protect them. The most important is to convert the idea from an amorphous thought into something concrete, such as an outline for a script, a book, a prototype, or even a sketch of a toy idea. The point is to create something that is protectable and identifiable beyond the idea itself. When trying to commercialize the idea through a third party, keep the contacts formal, and be clear about expectations, particularly if you’re trying to get compensation. Get as much in writing as possible. All in all, taking any one of these steps would be a pretty good idea.

George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law. Send your comments about this article to