Creative professionals and the businesses they work with both owe it to themselves to ensure that they carefully define their relationships – and resulting intellectual property rights – in written agreements. Drew Heriot, a writer, director and editor who collaborated with Rhonda Byrne in the creation of “The Secret” – a popular self-help DVD – learned this lesson the hard way and has sought to enforce the rights he claims in The Secret in a lawsuit pending in the U.S. District Court for the Northern District of Illinois.

According to the court, from 2003 to 2004, Heriot worked for Byrne's production company Prime Time Productions under a consultancy agreement. After the agreement expired, Byrne approached Heriot in 2005 regarding work on The Secret, a concept derived from self-help materials Byrne had reviewed. For several months Heriot assisted Byrne in developing the concept. Prime Time Productions paid Heriot’s production company for work on the project pursuant to the company’s invoices. Apparently in lieu of a written service agreement, Byrne ensured Heriot that he could “trust her” by working on the project in this manner, and she allegedly told him that Heriot and his company would be entitled to a share of any resulting profits. Thereafter, Heriot and Byrne co-wrote outlines of the show. In addition, Heriot wrote “Questions for Interview Subjects,” and a “2hr Paper Edit” and “tranSCRIPT” that was the screenplay for The Secret. Heriot also directed the original edition of The Secret and oversaw various creative aspects of the post-production work, including editing, visual effects, music, and the overall style and look of the film.

Apparently without Heriot’s knowledge, Prime Time Productions transferred its rights in The Secret to Byrne, who then transferred her interest to TS Production LLC, a Hungarian shell company owned by a United States parent company, TS Production Holdings LLC. TS Production Holdings LLC is owned, in whole or in part, by Byrne and another business partner. TS Production LLC later engaged Prime Time Productions to create an extended version of the movie. Byrne was attributed as the sole creator and author of The Secret in both the extended version of the movie and in a book associated with the movie.

Following publication, The Secret enjoyed rapid worldwide success. After release of the original edition of the movie, Heriot inquired about unpaid invoices due to Drew Pictures. Byrne allegedly informed Heriot that he was “unappreciative of all the opportunities that have been given to you” and that she and her business partner had “some serious thinking to do.”

Heriot and his production company then filed suit against Byrne, her business partner, and the various business entities associated with The Secret. Heriot sought a declaratory judgment of copyright co-ownership and duty to account, an equitable accounting, damages for copyright infringement, and damages for unjust enrichment. In an opinion, issued on December 23, 2008, the court dismissed the state law equitable accounting and unjust enrichment claims as being pre-empted by the U.S. Copyright Act. The court also dismissed the request for declaratory judgment against Prime Time Productions, because the plaintiffs did not allege that Prime Time claimed an ownership interest in The Secret. However, the court allowed the copyright infringement claim against Prime Time to survive the defendants’ motion to dismiss.

This case is a very good example of the vital importance of memorializing in written agreements the intended resolution of intellectual property rights resulting from creative collaborations. It is almost never advisable to rely on a collaborator’s verbal assurances or to hope for the best in lieu of expressing intended outcomes in a contract. “The law of attraction” described in The Secret may represent an intriguing avenue to self-improvement, but, in legal arrangements, it cannot take the place of thorough planning and clearly drafted agreements. Before commencing any work on collaborative projects with other parties, all sides are well advised to seek the advice of counsel to ensure that their existing and future rights and interests are protected and enforceable.

The case described above is Drew Heriot, et al. v. Rhonda Byrne, et al., 2008 WL 5397496 (N.D. Ill. December 23, 2008).