Intellectual Property
Apr. 19, 2012
Howard B. Miller
See more on Howard B. MillerGirardi Keese Los Angeles
Every morning, Miller begins his day perusing the headlines from a long list of international news sources.
"It's just not possible to practice any area of the law these days without being aware of the international implications," he said. "That's one of the things that makes it so great."
In late 2010, Miller argued before an en banc panel of 11 judges at the 9th U.S. Circuit Court of Appeals in what would become one of 2011's most important copyright rulings - and for which he'd receive international recognition. Montz v. Pilgrim Films & Television Inc., 649 F.3d 975 (9th Cir. May 4, 2011).
Miller represented Larry Montz, a ghost researcher who'd pitched a reality show about paranormal activity to several production companies in the late 1990s and early 2000s. When the Syfy cable television network launched its popular "Ghost Hunters" series, Montz sued the production company behind the show, saying it used his idea without compensation, breaking an implied-in-fact contract it had made with him during the pitch meeting.
The studio countered, arguing that implied contract claims are pre-empted by federal copyright claims - a common defense in so-called "idea theft" cases. The district court agreed, and a three-judge appellate panel affirmed the decision. But the 9th Circuit reheard the decision en banc and reversed, finding that Montz's expectation that he would co-produce the show and share in its profits transformed the dispute from a copyright claim to a contractual issue.
Studios saw that decision as potentially opening the floodgates to implied contract-based idea theft claims, which are more likely to proceed to trial - unlike copyright claims, which are easier to get thrown out on summary judgment.
Miller said he was surprised to find that lawyers around the world were also paying close attention to the case. At an intellectual property conference in New Delhi earlier this year, he said a French lawyer approached him to ask whether he was the lawyer who argued the Montz case.
"He'd seen me on YouTube," Miller laughed.
His practice, which is roughly 75 percent intellectual property, has become increasingly international in recent years. He's currently working on a copyright case involving a Belgian songwriter and obtaining and enforcing a German client's trademark in the U.S.
"It's just a whole new world," he said.
- ERICA E. PHILLIPS
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