The Auditors of the Amazon commented yesterday with a question that probably deserves some discussion.
What about "appropriating" someone else's failed screenplay idea/script?
We've been contacted by a lot of people lured into that Zombies Vs. Gladiators rewrite contest. Like us, they see the massive problems with the script, a script that went out to the studios, and has already been passed on.
It's actually easier to do a page one, total, and absolute new rewrite than to try and fix ZvG.
However, it appears that Amazon Studios doesn't think that there's much to fix with the script, so we think that anyone that would submit a page one rewrite to the contest would be at a disadvantage.
So, what about taking the BRAAAAIINSSSS behind ZvG and changing everything? The names, characters, places, times, plot, story, everything, and then writing an entirely new script and submitting it to the studios?
Scott Mullen (a fellow reader) said that this would be immoral. We don't think morals and ethics enter into it if it's totally different.
Let's say a ZvG page one rewrite is really good, and somehow gets back to the studios who declined/passed on a previous iteration (by different authors), could ZvG sell without legal troubles?
There's a legal question and a moral question before the court here. Scott's probably right that you're on slippery moral turf. In a case like this, if it wasn't for the initial script, you never would have generated your idea in the first place. Still, time and again, writers are told that it's the execution of ideas that are copyright-able, not the initial idea itself.
With something like Zombies vs. Gladiators, suppose you just heard the title and went, "That's a pretty cool idea! I know what I'd do with that." Then, without ever reading the script, you go off and develop your version of it. Obviously, you couldn't have stolen anything from the script because you didn't read it. The original writers might sue you, but unless they could point to specific details that could only have come from a reading of their script, odds are they'd lose.
As I've said, I'm not a lawyer, but that's my best guess at how this would shake out in court. A full page-one rewrite of the concept with a completely different plot, characters, and setting probably would be on safe ground legally. Legally.
Ah, but then comes the moral question.
I'm a struggling writer. After years of trying, I break through and get representation and lo and behold, my manager takes a look at my Zombies vs. Gladiators script (aka "Dawn of the Dead meets 300") and declares that it's perfect for Zack Snyder to produce. And guess what, Snyder's development people agree. I send them the script. I go in for a meeting. We rap. They pass. It's "not for them." They "liked it but didn't love it." I get no money, and move on to other projects.
One year later, I see a trailer for "Zack Snyder presents 'Zombies vs. Gladiators.'"
Should I have a case? Doesn't it seem like Snyder's people owe me something?
That's why in cases like this, usually you'll see the company buy the spec even if all they want is the concept. They'll get a few rewrites out of the writers, and then probably pay another writer or four to takeover and rewrite the project completely. Why do they do that? Because it's cheaper and less of a hassle to buy the script outright than deal with the legal question later. After all, circumstances like that look mighty fishy, and you never know what a judge or jury would do with a scenario that grey.
Now, the scenario you posit is a bit different, in that instead of Snyder's Director of Development initiating the new idea, you have come up with this Page One rewrite entirely on your own. I'd say that probably puts the legal burden on you rather than the studios. (But again, I'm NOT A LAWYER.) So if your question is, "Does the fact that another iteration of this idea already went wide to studios present an obstacle for this one?" I'd say only as far as the first pass indicates that they might not be interested in the idea.
Try this scenario: I'm telling a friend about my idea for a new screenplay. Maybe I've come up with a cool new comedic hook like, "It's about a woman dealing with her best friend getting married and having to put up with her raunchy bridesmaids while doing her duties as maid of honor." While I write my version, he goes off and writes his. As it turns out, the plots and the tone of both scripts is distinctly different. He writes from the school of Apatow while I wrote from the school of Wilder.
His sells, mine doesn't. Can I sue him? Probably not... but he's probably just a tiny bit of a dick for coming up with a competing idea, no matter how much he might legally be in the right.
Thus, I don't really endorse this. I have enough trouble when I mention an idea to a writer friend and then have to worry if his role in brainstorming a few ideas means he's going to think I "stole" the idea if I write it without him. As you might guess, I see a dozen badly-executed scripts a week - and every now and then there's one that has a great premise, but is never going to get bought because it's so badly written. I really can't see appropriating that idea because to me, that would feel too much like theft.