This Note examines Benay v. Warner Bros. Entertainment, Inc., and the substantial-similarity standard under a California breach of an implied-in-fact contract claim and a federal copyright infringement claim. The standard used in Benay will hinder the free flow of ideas by deterring producers from accepting an author’s screenplay for fear of breaching an implied-in-fact contract. Part I of this Note summarizes the history and development of the protection of rights to creative works. Part II provides the facts and procedural history of Benay v. Warner Bros. Entertainment, Inc. Part III analyzes and criticizes the Ninth Circuit’s holding in Benay. Finally, Part IV proposes that California’s standard for a breach of an implied-in-fact contract claim, like that brought by the Benays, should be heightened so that a plaintiff must show substantial similarity between protectable elements, not merely between unprotectable elements. This Note proposes a standard that will not only promote the purposes of copyright law but also better indicate when the plaintiff’s work was actually used in creating the defendant’s production.
Benay v. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, 41 Golden Gate U. L. Rev.