In the divorce settlement of Joseph Eszterhas -- the Hollywood screenwriter whose work includes "Basic Instinct" and "Showgirls," -- and his wife, the issue arises as to whether story "ideas" can be considered community property. Mrs. Eszterhas claims that a screenplay called "Foreplay," sold after the divorce property settlement had been completed, was based on a screenplay and a one-paragraph treatment that Mr. Eszterhas wrote before their separation. She asks that the proceeds from the sale of "Foreplay" should be considered part of the pre-separation property. Mr. Eszterhas contends that since ideas are not copyrightable, they cannot be considered property, and more to the point, not community property. The following is Mr. Eszterhas's Nov. 2, 1995 trial brief.

Patricia L. Glaser (State Bar No. 55668) 
Nabil L. Abu-Assal (State Bar No. 136764) 
 
CHRISTENSEN, WHITE, MILLER, FINK & JACOBS 
2121 Avenue of the Stars 
18th Floor 
Los Angeles, California 90067-5010 
Telephone: (310) 553-3000 
Facsimile: (310) 556-2920 
 
C. Clay Greene (State Bar No. 76607) 
 
GREENE, MAYER, PICCHI & BLOOM 
55 Shaver Street, Suite 300 
San Rafael, CA 94901 
Telephone: (415) 457-4080 
Facsimile: (415) 457-6439 
 
 
Attorneys for Petitioner 
JOSEPH A. ESZTERHAS 
 
 
SUPERIOR COURT OF THE STATE OF CALIFORNIA 
FOR THE COUNTY OF MARIN 
 
 
In Re the Marriage of: 
 
Petitioner: JOSEPH A. ESZTERHAS 
 
and 
 
Respondent:  GERALDINE ESZTERHAS 
 
 
Case No. FL 08860 
 
PETITIONER'S TRIAL BRIEF 
 
TRIAL DATE: November 2, 1994 
 
DEPT: 4 
 
TIME: 10:00 a.m. 
 
 
TABLE OF CONTENTS 
 
I.   INTRODUCTION 
 
II.  THE APPLICABLE LAW: "IDEAS" DO NOT CONSTITUTE 
COMMUNITY 
PROPERTY 
 
A.   Ideas Cannot Be Copyrighted. 
 
B.   If The Ideas Are Not Copyrightable, They Cannot 
Constitute Community Property. 
 
C.   Mr. Eszterhas' Post-Separation Labor In Creating 
Alleged Expressions Of Pre-Separation Ideas, And The 
Post-Separation Income Derived Therefrom, Cannot 
Constitute Community Property. 
 
III. IT IS UNDISPUTED THAT NO PORTION OF "FOREPLAY" 
WAS 
WRITTEN PRIOR TO THE DATE OF SEPARATION; 
MOREOVER, 
"FOREPLAY" IS NOT DERIVATIVE OF OR BASED UPON 
ANY 
PRE-SEPARATION "IDEA" 
 
A.  Factual Background. 
 
B.  "Foreplay" Is In No Way Derived From Or Based Upon 
Either "Platinum" Or "Act Of Contrition." 
 
    1.   Applicable Law:  Cases That Have Addressed When A 
Writing Is "Derived From" Or "Based Upon" Another Writing 
 
    a.  Definition Of A Derivative Work 
 
    b.   Definition Of "Based Upon." 
 
    2.   The Testimony Will Show That No Material Element Of 
"Foreplay" Is Similar To Either "Platinum" Or "Act Of 
Contrition." 
 
    a.  Summary Of Foreplay. . 
 
    b.  Summary Of Platinum. 
 
    c.   The One Paragraph Description of "Act of 
Contrition." 
 
IV.  THE DEVELOPMENT AND WRITING OF THE STORY 
"ONE NIGHT 
STAND" OCCURRED POST-SEPARATION 
 
A.  Factual Background. 
 
B.   Even If The Four Pages Of "One Night Stand" Were Based 
Upon Pre-Separation Ideas, The Pre-Separation Ideas Do Not 
Constitute Community Property And Have No Value 
 
THE PRE-SEPARATION "IDEAS" DO NOT CONSTITUTE 
COMMUNITY 
PROPERTY AND, EVEN IF THEY DID, THEY LACK ANY 
DIVISIBLE 
VALUE 
 
A.   Factual Background 
 
B.   Testimony Regarding The Value Of The Pre-Separation 
Ideas. 
 
VI.  CONCLUSION 
 
 
TABLE OF AUTHORITIES 
 
Cases: 
 
Berick v. Crichton, 
761 F.2d 1289 (9th Cir. 1985) 
 
Desney v. Wilder, 
46 Cal.2d 715 (1956) 
 
Fink v. Goodson-Todman Enterprises, Ltd., 
9 Cal.App.3d 996 (1970) 
 
Franklin v. Franklin, 
67 Cal.App.2d 717 (1945) 
 
In re Adams Estate, 
282 P.2d 190 (1955) 
 
In re Marriage of Aufmuth, 
89 Cal.App.3d 446 (1979) 
 
In re Marriage of Gonzalez, 
168 Cal.App.3d 1021 (1985) 
 
Litchfield v. Spielberg, 
736 F.2d 1352 (9th Cir. 1984) 
 
Shaw v. Lindheim, 
919 F.2d 1343 (9th Cir. 1990) 
 
Todd v. Todd, 
272 Cal.App.2d 786 (1969) 
 
Weitzenkorn v. Lesser, 
40 Cal.2d 778 (1953) . 
 
 
STATUTES: 
 
Cal.Civ.Code Section 65 . 
 
Cal.Fam.Code Section 761 
 
Cal.Fam.Code Section 771 
 
 
OTHER AUTHORITIES: 
 
Webster's New World Dictionary (2nd College ed. 1982) 
 
I. 
 
INTRODUCTION 
 
    The division of community property substantially has 
been settled by the parties.[fn 1]  The settlement makes 
abundantly clear that the respondent has received her fair 
share of the community's interest in property that is 
definable, divisible and presently exists. 
 
    The three remaining issues for the Court to consider 
rest upon respondent's overreaching and contrived attempt to 
have the Court declare that any pre-separation "ideas" of 
petitioner Joseph A. Eszterhas, a prolific and famous 
screenplay writer, constitute community property, if and 
when these "ideas" somehow re-appear in Mr. Eszterhas' 
post-petition writings. 
 
    First, respondent contends that a screenplay entitled 
"Foreplay, " written and sold post-separation, is actually 
derived from or based upon "ideas" contained in a 
screenplay, entitled "Platinum," and a one-paragraph "idea" 
for a screenplay, entitled "Act of Contrition," both written 
(but unsold) pre-separation. Respondent does not dispute, 
however, that each portion and every word of "Foreplay" was 
written after the date of separation. Moreover, respondent 
does not and cannot dispute that these three writings are as 
different as different can be:  They share no similarity in 
characters, plot, theme, dialogue, mood, setting, pace or 
sequence, the basic building blocks of a screenplay.  In 
fact, the one paragraph description "Act of Contrition" 
lacks virtually all of these elements. 
 
    In spite of the conflict between respondent's contention 
and implicit admissions, respondent still stubbornly argues 
that some portion of "Foreplay" must constitute community 
property because she somehow concludes it is based upon some 
pre-separation "idea." Therefore, she claims an arbitrarily 
determined portion of its sale proceeds should be divided 
among the parties.  (The promise of money appears to 
generate more "ideas" than the fecund imagination of a 
screenplay writer.) 
 
    Respondent next contends that an approximately four page 
story for a screenplay entitled "One Night Stand," written 
and sold post-separation,[fn 2] is actually based upon 
"ideas" contained in two different one-sentence and 
two-sentence descriptions that occurred pre-separation. 
Again, respondent does not dispute that every portion and 
every word of the story "One Night Stand" was written after 
the date of separation.  Nor can respondent contend that the 
story and the idea-descriptions share any similarity in 
terms of characters, plot, theme, dialogue, mood, setting, 
pace or sequence. Indeed, the one- and two-sentence 
descriptions contain hardly any of these necessary and 
traditional elements of a story. 
 
         Yet again, in spite of the conflict between 
respondent's contention and her implicit admissions, 
respondent insists that some unidentifiable portion of "One 
Night Stand" is based upon a pre-separation "idea" and, 
therefore, a portion of the sale proceeds of "One Night 
Stand" constitutes community property. (Clearly, but for the 
fact that "One Night Stand" generated significant 
post-separation income, respondent would have no interest in 
advancing her blatantly absurd argument.) 
 
    Finally, respondent asserts that certain "ideas" or 
concepts -- virtually all of which consist of two-word or 
one- or two-sentence descriptions -- generated by petitioner 
prior to the date of separation, constitute community 
property and have a certain divisible value.  Thus, 
respondent argues, the Court should 
 
     (a) declare that these ideas constitute community 
property; and 
 
     (b) declare that if these ideas ever become the genesis 
of a screenplay which is eventually written and sold, 
respondent should be awarded an arbitrary percentage of the 
monies generated by said screenplay. 
 
    Respondent's three contentions unabashedly reveal her 
true intent in pushing to have a trial on these issues.  For 
the rest of Mr. Eszterhas' life, respondent wants to 
maintain the threat that she has an interest in any and all 
screenplays Mr. Eszterhas may create and sell.  If 
respondent is allowed to assert that some post-separation 
screenplay is in any way related to some pre-separation 
idea, petitioner's post-separation income will forever be 
prey to respondent's whims. 
 
    Fortunately, neither the law nor the facts allow the 
Court to indulge respondent in such fantasies. 
 
    As a matter of law, "ideas" cannot constitute property; 
they cannot be owned and they are not divisible in any 
manner.  A fortiori ideas do not constitute community 
property, even if those "ideas" were conceived 
pre-separation and were the "source" of post-separation 
writings. 
 
    As a matter of fact, the percipient and expert testimony 
to be presented at trial conclusively will show that none of 
the so called pre-separation "ideas" at issue in this case 
are substantially or materially related to any 
post-separation writings.  As the Court will easily conclude 
once it reads the writings and hears the testimony, the 
difference, for example, between the screenplay "Foreplay," 
on the one hand, and the screenplay "Platinum" and 
one-paragraph description "Act of Contrition," on the other 
hand, is the difference between apples and oranges.  None of 
the basic elements that constitute these writings are 
similar. 
 
    Finally, the testimony will show that the so-called 
pre-separation "ideas" have no divisible value because the 
form of their existence is inchoate.  Without any 
substantial form or concrete expression, an "idea" is just 
an idea, and "ideas" have no market value.  If respondent 
(or even Mr. Eszterhas himself) were to attempt to sell the 
"ideas" she so aggressively seeks to possess (virtually all 
of which consist of one or two sentences), she would receive 
absolutely nothing for her efforts. 
 
    Thus, there is no legal, factual or logical basis to 
respondent's contentions and, therefore, the Court should 
find that a) no portion of "Foreplay" and "One Night Stand," 
or any portion of the proceeds of their sale, constitutes 
community property, and (b) no "ideas" at issue constitute 
community property. 
 
 
II. 
 
THE APPLICABLE LAW: "IDEAS" DO NOT CONSTITUTE 
COMMUNITY 
PROPERTY 
 
A.   Ideas Cannot Be Copyrighted. 
 
    It is hornbook copyright law that an "idea" cannot be 
copyrighted.[fn 3]  Berick v. Crichton, 761 F.2d 1289, 1293 
(9th Cir. 1985) ("No one can own the basic idea for a story. 
General plot ideas are not protected by copyright law; they 
remain forever the common property of artistic mankind.") . 
Only the concrete, actual expression of an idea can be 
copyrighted. Shaw v. Lindheim, 919 F.2d 1343, 1356 (9th Cir. 
1990) (copyright law protects a writer's expression of 
ideas, not the ideas themselves). 
 
     The logic of this simple rule of copyright law is 
apparent. If an "idea" were copyrightable, then any and all 
"expressions" that could in any way be traced to the "idea" 
would constitute an infringement of the idea.  Yet, the 
purpose of copyright law is not to stifle expression; to the 
contrary, it is to foster the greatest amount of expression 
possible. 
 
 
B.   If The Ideas Are Not Copyrightable, They Cannot 
Constitute Community Property. 
 
    Certain general principles of family law help to 
determine whether an "idea" can constitute community 
property. 
 
    Preliminarily, in order for a spouse to have a community 
property interest in certain "property," the "property" must 
first exist.  Cal.Fam.Code  761 (community property consists 
of " . . . all Property . . . real or personal).  Property 
is defined in terms of ownership of a thing: "The ownership 
of a thing is the right of one or more persons to possess 
and use it to the exclusion of others.  In this code, the 
thing of which there may be ownership is called property." 
Cal.Civ.Code  654. 
 
    Moreover, not every property right acquired by either 
husband or wife during marriage constitutes community 
property.  For example, the right to practice medicine and 
similar professions is property right, but "it is not one 
which could be classed as community property." Such a right, 
like an education, "cannot have monetary value placed upon 
it for division between spouses." Franklin v. Franklin, 67 
Cal.App.2d 717, 725 (1945); Todd v. Todd, 272 Cal.App.2d 
786, 791 (1969); In re Marriage of Gonzalez, 168 Cal.App.3d 
1021, 1024 (1985). 
 
    Based upon these principles, it is respectfully 
submitted that if an "idea" cannot be copyrighted, it also 
cannot constitute an interest that is protected by the law. 
It cannot be "owned" and a fortiori it also cannot 
constitute "property": 
 
      "Generally speaking, ideas are as free as the air and 
as speech and the senses. . An idea is usually not regarded 
as property, because all sentient beings may conceive and 
evolve ideas throughout the gamut of their powers of 
cerebration and because our concept of property implies 
something which may be owned and possessed to the exclusion 
of all other persons.  We quote as an accurate statement of 
the law in this respect the following language of Mr. 
Justice Brandeis (citation omitted): 'An essential element 
of individual property is the legal right to exclude others 
from enjoying it." 
 
      " 'The doctrine that an author has a property right in 
his ideas and is entitled to demand for them the same 
protection which the law accords to the proprietor of 
personal property generally finds no recognition either in 
the common law or in the statutes of any civilized country.' 
(citations omitted)" 
 
Desney v. Wilder, 46 Cal.2d 715, 732 (1956). 
 
    Moreover, even if an "idea" constituted some sort of 
right, like a right to practice medicine or the right to an 
education, it is a right that "cannot have a monetary value 
placed upon it for division between spouses."  "Ideas" for a 
writer are the fuel for how he generates writings, just like 
for a lawyer it is his legal education and license which 
form the fuel for his practice.  If such an education and 
license do not constitute community property, then "ideas" 
also cannot constitute community property. 
 
    In sum, if "ideas" are not property, there can be no 
community property interest in them. 
 
C.   Mr. Eszterhas' Post-Separation Labor In Creating 
Alleged Expressions Of Pre-Separation Ideas And The 
Post-Separation Income Derived Therefrom. Cannot Constitute 
Community Property. 
 
    But what if, arguendo, it can be shown that a screenplay 
produced by Mr. Eszterhas post-separation is somehow based 
upon or related to an "idea" which he conceived 
pre-separation?  Does that show either that (a) there is 
some pre-separation value to the "idea" or (b) a portion of 
the post-separation screenplay was actually created 
pre-separation? 
 
    The answers to all of these questions reside in basic 
principles for determining community property. 
 
    First, a spouse's income generated by his 
post-separation labor is the spouse's separate property: 
"The earnings and accumulations of a spouse ... while living 
separate and apart from the other spouse, are the separate 
property of the spouse." Cal.Fam.Code  771. 
 
    Second, even if a spouse obtains the capacity or ability 
to produce income during the marriage, his post-separation 
income generated from that capacity or ability is his 
separate property. For example, if a spouse obtains a law 
degree during marriage, his post-separation income generated 
because of that law degree is not community property.  In re 
Marriage of Aufmuth, 89 Cal.App.3d 446, 461 (1979) (a 
determination that a legal education is a community property 
asset would require a division of post-dissolution earnings 
"tO the extent that they are attributable to the law degree, 
even though such earnings are by definition the separate 
property of the acquiring spouse").  In sum, drawing a 
causal relationship between a pre-separation event and 
post-separation income is insufficient to establish a 
community property interest in the post-separation income. 
 
    Third, the enhancement in value of an "idea" conceived 
pre-separation, solely caused by the post-separation labor 
of a spouse, is the separate property of that spouse (i.e., 
by the writing of a screenplay).  See, e.g., In re Adams 
Estate, 282 P.2d 190, 198 (1955). 
 
    In this lawsuit, assuming, arguendo, that the "ideas" at 
issue (a) were conceived during marriage and (b) somehow 
"resulted" in or are related to post-separation screenplays, 
the Court must still find that the post-separation income 
generated by those post-separation screenplays is the 
separate property of Mr. Eszterhas for the following 
reasons: 
 
    First, the testimony will show that it is indisputable 
that Mr. Eszterhas' post-separation labor produced all of 
the income generated by each of the post-separation 
screenplays. 
 
    Second, even if one assumes that the pre-separation 
"ideas" somehow resulted in or are related to the 
post-separation screenplays, as a matter of law, the Court 
should find that such result only occurred due to the 
post-separation labor of Mr. Eszterhas.  But for Mr. 
Eszterhas sitting down and writing the screenplays that are 
allegedly based upon or related to the "ideas," no income 
would have been or could be generated from the "ideas" 
alone. 
 
    Third, even if one deems Mr. Eszterhas' post-separation 
screenplays as "enhancements" of pre-separation "ideas" 
(something requiring a staggering leap of imagination), said 
"enhancements" (i.e., the expression of the "ideas" in his 
screenplays) were created entirely by his post-separation 
labor and, therefore, all income derived from the 
"enhancements" is his separate property. 
 
    Based upon all these reasons, the Court should find as a 
matter of law that no portion of any income generated from 
Mr. Eszterhas' post-separation screenplays is community 
property. 
 
 
III. 
 
IT IS UNDISPUTED THAT NO PORTION OF "FOREPLAY" 
WAS WRITTEN 
PRIOR TO THE DATE OF SEPARATION; MOREOVER 
"FOREPLAY" IS NOT 
DERIVATIVE OF OR BASED UPON ANY PRE-SEPARATION 
"IDEA" 
 
A.  Factual Background. 
 
    There is no dispute that each portion and every word of 
the screenplay "Foreplay" was written after the date of 
separation: Uncontradicted testimony conclusively will show 
that Mr. Eszterhas wrote "Foreplay" two weeks before it was 
sold in May 1994, over a year after the date of separation. 
Prior to actually sitting down and writing the screenplay, 
Mr. Eszterhas did no research on the screenplay, nor did he 
generate any notes, memoranda or outlines of the screenplay. 
He simply sat down and wrote it.[fn 4] 
 
         Respondent does not dispute that Mr. Eszterhas 
wrote every portion and every word of "Foreplay" after the 
date of separation. Respondent nevertheless contends that 
"Foreplay" is somehow derived from or based upon an "idea" 
or "ideas" found in a screenplay, "Platinum," and a 
one-paragraph description of an idea for a screenplay, "Act 
of Contrition," both written before the date of separation. 
Thus, respondent argues, an appreciable portion of 
"Foreplay" somehow was created prior to the date of 
separation. 
 
       The applicable law and testimony will show that this 
contention is nonsensical and not a little disingenuous. 
There is absolutely no substantial or material similarity 
between "'Foreplay," on the one hand, and "Platinum" and 
"Act of Contrition," on the other hand.  Simply put, these 
three writings are as different as A Farewell to Arms, The 
Old Man and The Sea and The Sun Also Rises.  Respondent is 
simply trying to contrive a theory, however implausible, to 
justify her attempt to attach herself to Mr. Eszterhas' 
post-separation labor and income, at any cost. 
 
 
B.   "Foreplay" Is In No Way Derived From Or Based Upon 
Either "Platinum" Or "Act Of Contrition." 
 
    1.    Applicable Law:  Cases That Have Addressed When A 
Writing Is "Derived From" Or "Based upon" Another Writing. 
 
a.  Definition Of A Derivative Work. 
 
    The term "derivative work" is a term of art generally 
used in copyright law.  A "work is not derivative unless it 
has been substantially copied from the prior work" and 
constitutes an infringement of the copyrights of the prior 
work.  Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th 
Cir. 1984). 
 
    In order to show substantial copying or infringement, 
one must prove that the latter and prior work are 
"substantially similar in both ideas and expression." Id. at 
1356. 
 
    "Similarity of ideas may be shown by an extrinsic test 
which focuses on alleged similarities in the objective 
details of the works.  (citation omitted)  The extrinsic 
test requires a comparison of plot, theme, dialogue, mood, 
setting, pace and sequence.  (citations omitted) 
 
    Similarity of expression depends on a subjective, 
intrinsic test.  This test focuses on the response of the 
'ordinary reasonable persons' to the works. (citation 
omitted)" 
 
Id. 
 
    As will be set forth below, the percipient and expert 
testimony at trial will leave no doubt that absolutely no 
substantial similarity exists between "Foreplay," on the one 
hand, and "Platinum" and "Act of Contrition," on the other 
hand.  A comparison of the "plot, theme, dialogue, mood, 
setting, pace and sequence" of these three writings mandates 
the conclusion that there is no substantial similarity 
between them.  No reasonable person reading these three 
writings would conclude that they are similar in any manner, 
except the most general, abstract level (a level at which 
they are similar to virtually thousands of detective or 
mystery stories). 
 
        b.   Definition Of "Based Upon." 
 
    The meaning of the term "based upon" has been addressed 
by California courts generally in contexts where a plaintiff 
claimed to have a contract with the defendant which provided 
that if the defendant produced a work based upon, or on, the 
plaintiff's expression, the defendant would be obligated to 
pay plaintiff a certain sum.  Weitzenkorn v. Lesser, 40 
Cal.2d 778, 792 (1953); Fink v. Goodson-Todman Enterprises 
Ltd., 9 Cal.App.3d 996, 1007-1008 (1970).  In these cases, 
the Courts have found that if the latter work included a 
"material element or qualitatively important part" of the 
prior work, then one could conclude that the latter work was 
"based upon" the prior work.  Fink, 9 Cal.App.3d at 1008. 
 
    Here, the testimony conclusively will show that 
"Foreplay" is completely different than either "Platinum" or 
"Act of Contrition." No material element of the three is 
similar, and, therefore, it is ludicrous to conclude that 
"Foreplay" is based upon either "Platinum" or "Act of 
Contrition." 
 
    Moreover, even if the Court somehow concludes that 
"Foreplay" is based upon an "idea" that can be found in 
"Platinum" or "Act of Contrition," as discussed above, such 
an "idea" would not constitute community property.  Also, as 
discussed above, any post-separation income generated from 
the enhancement of the idea would be the separate property 
of Mr. Eszterhas, since his post-separation labor (i.e., the 
writing of "Foreplay") was the sole cause of enhancing the 
value of any idea even arguably contained in "Platinum" or 
"Act of Contrition." 
 
2.    The Testimony Will Show That No Material Element Of 
"Foreplay" Is Similar To Either "Platinum" Or "Act Of 
Contrition." 
 
    The percipient and expert testimony presented concerning 
"Foreplay," "Platinum" and "Act of Contrition" quickly 
reveals the obvious:  these three writings have nothing in 
common (except, again, at the most superficial, general or 
abstract level).  For the Court's convenience, a summary of 
each of the two screenplays as well as the single paragraph 
constituting the entirety of "Act of Contrition" is set 
forth below: 
 
a.  Summary Of Foreplay. 
 
    The story is set in St. Petersburg, Florida, where a 
bizarre case of serial murders is baffling the police.  In 
each instance, an anonymous female caller notifies the 
authorities that, "The tide is red, there are pigs in the 
sea." Then, a butchered headless hog turns up on the local 
beaches, with a naked human victim (sometimes male, 
sometimes female) with pubic hair shaved and mouths washed 
out, a .25 caliber bullet in the forehead, spreadeagled 
nearby. 
 
    Investigating the case are police detectives Vince 
Cochran, young, good-looking, with a checkered past, and his 
older, more conservative partner Carl Roberts.  They are 
initially led to a club each of the victims frequented, The 
Hawk's Eye. Among the suspects they encounter are: 
 
    Billy Hawks, a rich, decadent, sexually kinky retired 
rock star who owns the club.  His fame and local sponsorship 
of community affairs make him dangerous to offend. 
 
    Trish, a bisexual rock singer at Billy's club, a runaway 
at age 14 from a prominent Palm Beach family after being 
sexually abused by her parents, who is now involved with 
Billy. 
 
    Dominique Radley and her brother Viktor, wealthy, 
decadent, French-born Eurotrash who raise pigs on a local 
estate.  Dominique, also bisexual and involved with Trish, 
is married to a convicted serial killer currently serving a 
long sentence behind bars. Viktor, a butcher, served time in 
France for murdering some cops. 
 
    Against Carl's advice, Vince ingratiates himself with 
Billy, enjoying drugs and a threesome with two beautiful 
women at Billy's estate.  But Vince is more hung up on 
Trish, who initially fails to return his interest. 
 
    Billy tells Vince that Trish is the one who's been 
calling the police.  When the cops bring her in for 
questioning, she tries to get away and is injured.  Trish 
subsequently escapes from the hospital, and eludes Vince in 
a desperate car chase. 
 
    First one, then the second of the women Vince had sex 
with at Billy's estate turn up as victims of the serial 
killer.  One body is found on the beach in front of Vince's 
house, and the other in his bed. Vince is fired from the 
force when his involvement with them and drugs at Billy's 
estate is revealed. 
 
    At the club, Vince punches out Billy, and is in turn 
worked over by his security guards. Trish helps Vince home 
afterwards, and claims to have had psychic visions of the 
killings. She senses another is imminent.  With her help, 
Vince and the police find Dominique and Viktor with a 
headless pig in a cigarette boat offshore.  In an ensuing 
chase punctuated by gunfire, the cigarette boat explodes. 
The police subsequently discover the severed hogs' heads, 
razors, pubic hair, mouthwash, a .25 caliber derringer, and 
blue van, all previously linked to the murders, in a barn at 
Dominique's estate. The cops consider the case closed, 
except for Carl, who wonders why the evidence would have 
been left so brazenly unconcealed. 
 
    Vince then returns home with Trish, and is about to make 
love to her when Billy Hawks appears. Trish shoots Vince 
between the eyes, fulfilling a psychic "vision" she claimed 
to have had. 
 
    After Vince's nude body is discovered in the same 
condition as the previous victims, his partner Carl pays a 
visit to both Trish and Billy in turn, executing both of 
them with a shot to the head, rendering justice for his 
friend. 
 
b.  Summary Of Platinum. 
 
    This story is about a police detective, Nick Blazek, 
from Toledo, Ohio. Divorced, the father of two, he has never 
gotten over the death a year ago of his estranged younger 
brother, rock star Johnny Blaze, whom he raised after they 
were orphaned as kids. 
 
    Nick's suspicions are aroused after a former roadie with 
the band tells him Johnny feared someone was trying to kill 
him.  Then the ex-roadie turns up dead of an overdose. 
After a shooting incident causes Nick to be suspended from 
the force, he quits and goes to Mazatlan, Mexico, where his 
brother reportedly died of a drug overdose. 
 
         Nick is befriended by an expatriate cab driver, Sy 
Goldstein, who chauffeurs him around Mazatlan.  Nick also 
meets a local police officer named Quintero who handled the 
case of his brother's death. After receiving a tip, Nick 
discovers that his brother's grave holds an empty coffin. 
Quintero explains that due to a bureaucratic error, the body 
is really interred in a potter's field with thousands of 
others, a mistake the authorities don't want to admit.  Nick 
is then escorted to the airport and put on a plane back to 
the States. 
 
    Arriving in Los Angeles, Nick continues investigating 
his brother's mysterious fate.  The trail leads from 
Johnny's manager Ira Summers, to the executives at his first 
and last record labels, Johnny's girlfriend Katie, and his 
former band members, among others.  Sy Goldstein 
surprisingly turns up again, and is revealed to be an F.B.I. 
agent who wants Nick to leave the case alone. 
 
    Nick is subsequently shot and wounded during a 
restaurant robbery.  While he recovers in a hospital, he 
receives a couple of mysterious telephone calls from someone 
he believes is Johnny, inquiring if Nick is all right. 
 
    After checking himself out of the hospital, Nick becomes 
involved romantically with Katie.  Nick eventually finds out 
that Johnny is still alive, living alone in a secluded 
mountain cabin, and tracks him down there, accompanied by 
Katie. 
 
    The brothers are reunited, and reconcile their 
relationship. Nick learns that Johnny's death was faked 
because dead rock legends sell better than live, aging ones, 
and there were certain people in the music business with 
"connections" who preferred it that way. But Johnny has no 
knowledge of making any calls to Nick in the hospital. 
 
    Nick belatedly realizes he's been set up, and then sees 
his brother killed with a high-powered rifle.  Nick barely 
escapes with his own life, and the remote cabin is destroyed 
in a forest fire. 
 
    Returning to Mazatlan, Nick confronts Summers, accusing 
him of murdering Johnny.  But Katie gets the drop on Nick. 
As she and Summers take Nick for a ride in Summers' Rolls 
Royce, the car is trapped in a street carnival.  From out of 
the crowd, a cab driver appears -- Sy Goldstein, who shoots 
Summers while Nick struggles with Katie for her gun, and 
fatally wounds her in the process. 
 
    Nick finally pays one last visit to the public grave of 
Johnny Blaze, then walks away. 
 
c.  The One Paragraph Description Of "Act Of Contrition. 
 
    The one paragraph description of "Act of Contrition" 
provides: 
 
"Act of Contrition -- A cynical SF cop in his 30's is 
investigating sex killings apparently performed by an upper 
class killer.  He tracks the murders to the British Embassy 
and realizes they've also occurred in other cities.  He's 
told to back off by the state Dept., but experiencing the 
same instincts as the killer, he's driven to pursue the 
killer.  He goes to England and connects the killings to an 
Earl. He's invited to dinner by the Earl.  Young girls are 
present.  He and the Earl watch other.  Someone's killed or 
injured and we don't know who did it.  The Earl introduces 
his wife to the cop and offers her to him.  The cop takes 
him up on the offer, partly to gain insight, but falls for 
the wife.  He sees that she's got many scars.  At the end, 
we realize that the Earl and his wife are in it together. 
The cop tries to deal with his own demons. There should be a 
sense of the game throughout." 
 
    The descriptions of the three writings at issue set 
forth above clearly show that "Foreplay" was not based upon 
any idea or ideas expressed in either "Platinum" or "Act of 
Contrition." For the Court's convenience, set forth below is 
a brief summary of the key differences between these 
writings: 
 
 
KEY DIFFERENCES BETWEEN "FOREPLAY," "PLATINUM" 
AND "ACT OF 
CONTRITION" 
 
 
"FOREPLAY" 
 
Plot: Two homicide detectives investigate bizarre serial 
murders. 
 
Setting:    St. Petersburg, Florida 
 
Characters: Vince Cochran, young police detective; Carl 
Roberts, Vince's older partner; Trish, rock singer, Billy's 
girlfriend; Billy Hawks, retired rock star; Dominique, 
French-born bisexual. 
 
Theme: Police detective attracted to evil during official 
investigation. 
 
Mood: Decadent, kinky, bizarre, primarily story-oriented. 
 
Conflict:   External: to solve murders. 
 
Internal: Vince attracted to the dark side. 
 
Pace:  111 pages long; 91 scenes. 
 
Sequence:   Cops investigate murders. 
(beginning) 
 
(middle)  Vince involved with Billy and Trish 
 
(end)  Murders are solved but Vince dies, and Carl executes 
his killers. 
 
 
"PLATINUM" 
 
Plot: A robbery/burglary police detective tries to find out 
the circumstances of his brother's death. 
 
Setting: Toledo, Ohio; Mazatlan, Mexico; Los Angeles, CA; 
San Francisco, CA. 
 
Characters: Nick Blazek, police detective; Johnny Blaze, 
Nick's deceased brother; Katie, Johnny's former girlfriend; 
Ira Summers, Johnny's manager; Sy Goldstein, undercover FBI 
agent. 
 
Theme: Personal search to reconcile ex-police detective's 
relationship with his brother. 
 
Mood: Reflective, somber, primarily character-oriented. 
 
Conflict:   External: to learn what happened to Johnny. 
 
Internal: reconcile sibling relationship. 
 
Pace:  136 pages long; 137 scenes. 
 
Sequence:  Blazek investigates Johnny's death. 
(beginning) 
 
(middle)  Blazek thinks his brother is alive. 
 
(end)  Blazek finds Johnny, who's killed, and Blazek brings 
his murderers to justice. 
 
 
"ACT OF CONTRITION" 
 
Plot: A cop traces serial murders of women to a British 
Earl, and tracks him to England, where he falls for the 
Earl's wife before realizing they're in it together. 
 
Setting:  San Francisco; England 
 
Characters:  A cynical San Francisco cop; a decadent, kinky 
Earl; the Earl's wife. 
 
Theme: Not ascertainable. 
 
Mood: Not ascertainable. 
 
Conflict:   External: to solve murders. 
 
Internal: not ascertainable. 
 
Pace:  Not ascertainable. 
 
Sequence:  Not ascertainable. 
 
 
         Based upon the above-described differences, there 
should be no question that no portion of "Foreplay" was 
created or based upon a pre-separation writing or idea. 
Consequently, no portion of "Foreplay" and no portion of the 
proceeds from its sale constitutes community property. 
 
IV. THE DEVELOPMENT AND WRITING OF THE STORY 
"ONE NIGHT 
STAND" OCCURRED POST-SEPARATION 
 
A.  Factual Background. 
 
    It is undisputed that the approximately four-page story 
for the screenplay "One Night Stand" was developed and 
written in September 1994, more than one year after the date 
of separation. 
 
    Despite admitting that the story was developed and 
written in September 1994, respondent insists that it is 
somehow based upon "ideas" -- contained in but three 
sentences -- which were generated pre-separation.  A careful 
reading of the four page story and the alleged "ideas" upon 
which it is based proves, however, just the opposite. 
 
    The four-page story can be summarized as follows: 
 
    In Boca Raton, Florida, Jack Ramsey, married, with two 
children, finishes attending a business convention at the 
exclusive Beach Club Hotel.  Jack works for a small public 
relations agency in Syracuse, New York.  Four hours before 
his plane is due to depart, he makes the acquaintance of a 
beautiful woman in a bar, who tells him her name is Karen 
Andersen.  She isn't leaving till the next day. 
 
    They talk, are attracted to each other, and Jack takes 
her to his room, where he tells her the truth about being 
married.  Karen isn't fazed, and is perfectly content to 
share a one night stand with him. 
 
    The hotel room becomes their world for one night, where 
they talk more, grow closer, make love, eat, drink, and make 
love again. Their initial nervousness and awkwardness with 
each other gives way to utter openness and desire.  Even 
their arguments have the humorous edge that lovers who are 
really good together have.  Karen realizes and makes Jack 
realize he's done this kind of thing before, living from 
stranger to stranger in a life of one night stands. 
 
    The next morning, Jack wants her to stay over another 
day and night, but Karen has to leave.  She writes down her 
phone number, and invites him to look her up if he's ever in 
San Francisco. 
 
    Jack returns to Syracuse, and his wife and family, but 
his heart and mind remain in the hotel room with Karen.  His 
work suffers, his wife and friends notice something's wrong. 
 
    Working late one night, Jack tries calling Karen, but 
discovers the number she gave him is not a working number. 
He tries calling the agency she said she works for, but they 
never heard of a Karen Anderson.  Finally, he manages to 
trace her to a Florida number through a call she made from 
his hotel room, recorded on his bill.  But Karen tells him 
never to dial her again, and hangs up. 
 
    Jack tells his wife he has to return to Florida again on 
business.  He hires a private detective to locate Karen's 
address from the phone number, and finds her living in 
Coconut Grove with husband and child of her own. 
 
    Karen panics when she spies Jack watching her house, and 
agrees to meet him again at the Beach Club.  When she 
arrives, Jack declares his love for her.  But Karen is only 
interested in one night stands, which she arranges when her 
husband's out of town on business -- probably doing the same 
thing.  It's her way of fulfilling a fantasy life.  There 
really is no Karen Anderson. Her name is really Susan 
Watkins. 
 
    They go to his room to make love for one more night, 
then part never to meet again.  Jack returns home to his 
wife and kids and former life, which will never be quite the 
same. 
 
     Respondent contends that the above-summarized story is 
based upon the following pre-separation "ideas" which are 
fully contained in the following two sentences: 
 
"THE NIGHT STAND - idea about two people meet at a hotel 
during a convention: they spend the night together; whole 
movie is their talking and love-making." 
 
"ONE NIGHT STAND--Guy meets girl in a hotel bar while on a 
business trip.  Psycho-sexual story." 
 
    If it is not already obvious that there is no 
substantial or material relationship substantial or material 
between the four-page story "One Night Stand" and these two 
"ideas," the following table summarizes the key differences: 
 
 
 
KEY DIFFERENCES BETWEEN THE STORY "ONE NIGHT 
STAND" AND 
"IDEAS #1 AND #2" 
 
"ONE NIGHT STAND" - 4 Page Story 
 
Plot: A married man shares one night with a woman, then 
tries to find her again and continue the relationship. 
 
Setting:  Boca Raton, Coconut Grove, Florida; Syracuse, New 
York 
 
Characters: Jack Ramsey, married, two kids, works for a P.R. 
agency; Karen Andersen (Susan Watkins), married with one 
child; Mrs. Ramsey, Jack's wife 
 
Theme: Infidelity, love and marriage 
 
Mood: Romantic, and ultimately, sad 
 
Conflict:   External: Finding Karen Andersen again 
 
Internal: How can Jack Ramsey return to his life and 
marriage after meeting a woman who seems to be his soulmate, 
sexually and otherwise? 
 
Dialogue:   Not ascertainable 
 
Pace:       Not ascertainable 
 
Sequence:   Not ascertainable 
 
 
"Idea #1" 
 
Plot: A man and woman spend one night together 
 
Setting: Not ascertainable 
 
Characters: Man and woman 
 
Theme: Not ascertainable 
 
Mood: Not ascertainable 
 
Conflict: Not ascertainable 
 
Dialogue:   Not ascertainable 
 
Pace:       Not ascertainable 
 
Sequence:   Not ascertainable 
 
 
"Idea #2" 
 
Plot: Man and woman meet in a bar during a business trip 
 
Setting: Not ascertainable 
 
Characters: Man and woman 
 
Theme: Psycho-sexual 
 
Mood: Not ascertainable 
 
Conflict: Not ascertainable 
 
Dialogue:   Not ascertainable 
 
Pace:       Not ascertainable 
 
Sequence:   Not ascertainable 
 
 
         As if the foregoing were not enough, the testimony 
too will show that these three sentences are substantially 
and materially different from the four-page story for the 
screenplay "One Night Stand." The three sentences, if they 
tell a story at all, have a content that is in no way 
substantially or materially related to the story contained 
in the four-page story. 
 
    Indeed, the three sentences could describe an infinite 
number of stories because they contain "ideas" that are 
general and abstract.  On the other hand, the four pages 
entitled "One Night Stand" concretize and express a unique 
story.  In other words, a potential buyer of the three 
sentences -- if one existed -- would have little or no idea 
what type of screenplay he might ultimately receive from the 
author; the potential buyer of the four pages would have a 
very clear indication of the screenplay he ultimately will 
receive from the author. 
 
 
B.   Even If The Four Pages Of "One Night Stand" Were Based 
upon Pre-Separation Ideas. The Pre-Separation Ideas Do Not 
Constitute Community Property And Have No Value. 
 
    Assuming, arguendo, that "One Night Stand" was based 
upon the "ideas" set forth above, the "ideas" do not 
constitute community property.  Moreover, even if these 
"ideas" constituted community property, the Court still must 
determine the value of these "ideas" as they existed prior 
to the date of separation. 
 
    Expert testimony will show that the value of the two- 
three-sentence description of the "ideas" was nothing.  No 
reasonable studio or producer would purchase a two sentence 
general and abstract "idea" of a proposed screenplay.[fn 5] 
What studios or producers purchase is a concrete, unique and 
defined expression of story.  Because the ideas hardly 
constitute such an expression, there is no question that 
their value, as of the date of separation, was nothing. 
 
 
V. 
 
THE PRE-SEPARATION "IDEAS" DO NOT CONSTITUTE 
COMMUNITY 
PROPERTY AND  EVEN IF THEY DID. THEY LACK ANY 
DIVISIBLE 
VALUE 
 
A.  Factual Background. 
 
    The testimony will show that virtually all of the 
so-called pre-separation "ideas" constituted little more 
than brief, informal notes of chats between Mr. Eszterhas 
and his friend, Ben Myron. 
 
    In the summer of 1991, Mr. Eszterhas and Mr. Myron and 
others, took a cruise on the Sea Born to Australia.  At that 
time, Mr. Myron was interested in forming a film production 
company with Mr. Eszterhas, named "Renegade."  Mr. Myron had 
brought press clippings and other materials to discuss 
potential projects for Renegade. 
 
    During the cruise, it rained a lot.  In order to pass 
the time, petitioner and Mr. Myron discussed numerous ideas 
of potential screenplay and film projects over a four- or 
five-day period of time.  During these discussions, Mr. 
Myron took handwritten notes of what Mr. Eszterhas and he 
talked about.  The notes generally consist of nothing more 
than very brief descriptions of numerous ideas that both Mr. 
Eszterhas-and he were considering. 
 
    After the cruise, Mr. Eszterhas and Mr. Myron had 
further general discussions concerning ideas for screenplays 
and film projects for Renegade.  These further ideas (as 
well as the ideas discussed on the cruise) were later typed 
up in proposals for Renegade that Mr. Myron wrote.  The 
proposals list ideas discussed by Mr. Eszterhas and Mr. 
Myron, prior to the separation date. However, virtually all 
of the "ideas" identified in these proposals consist of one 
or two words or, at the most, one- or two-sentence 
descriptions of potential screenplay, film or television 
projects for Renegade. 
 
    Renegade was never formed. 
 
 
B.  Testimony Regarding The Value Of The Pre-Separation 
Ideas. 
 
    The testimony will show that the "ideas" at issue have 
no value because they lack any unique form or expression. 
All of petitioner's witnesses will testify that the "ideas" 
described in Mr. Myron's notes and proposals are so brief 
that they are not unique in any manner and, therefore, have 
no value.  In other words, the ideas as described are so 
general and abstract they could mean anything and therefore 
have no ascertainable market value. 
 
    The testimony further will show that in the 
entertainment industry, studios and producers do not 
purchase "ideas;" rather, they purchase concrete, unique 
expressions of ideas.  It is the distinct expression which 
creates value from an abstract, general idea, not the other 
way around.  Thus, because the descriptions set forth in Mr. 
Myron's notes and proposals do not constitute any concrete, 
unique expressions, but merely constitute "ideas," the 
descriptions have no value. 
 
    In sum, even if the "ideas" at issue can be deemed to 
constitute community property, they have no market value. 
Consequently, the Court under no circumstances should find 
that respondent should receive any portion of any screenplay 
sold based upon any of the "ideas" at issue. 
 
 
VI. 
 
CONCLUSION 
 
    Based on the foregoing, the Court should declare that 
(a) all "ideas" at issue in this case do not constitute 
community property; and (b) no portion of "Foreplay" and 
"One Night Stand," or any portion of the proceeds of their 
sale, constitutes community property. 
 
Dated: November 1, 1994 
 
Patricia L. Glaser 
Nabil L. Abu-Assal 
CHRISTENSEN, WHITE, MILLER, FINK & JACOBS 
 
By: /s/Patricia L. Glaser 
 
Attorneys for Petitioner 
JOSEPH A. ESZTERHAS 
 
 
============================================== 
 
 
1.  The apportionment of all community property already has 
occurred, pursuant to a dissolution settlement which, in 
part, provides that petitioner will pay or transfer the 
following to respondent Geraldine Eszterhas: 
 
(1) more than $1 million cash; 
 
(2) $32,500 per month for the rest of respondent's life; 
 
(3) petitioner's community interest in two lovely, valuable 
homes with a gross equity value of more than $1.8 million; 
 
(4) a 50% interest in all screenplays and other writings 
completed and sold by petitioner prior to the date of 
separation; and 
 
(5) a 25% interest in all screenplays and other writings 
completed but not sold by petitioner prior to the date of 
separation. 
 
 
2. The purchase price for the treatment "One Night Stand" 
includes, inter alia, Mr. Eszterhas' obligation to write a 
completed screenplay and the agreement of a director, Adrian 
Lynne, to be attached to the project. 
 
 
3.  An "idea" is defined by Webster's as follows: 
 
"1. Something one thinks, knows, or imagines; a thought; 
mental conception or image; notion.  2. an opinion or 
belief.  3. a plan, a scheme; project; intention; aim. 4. a 
hazy perception; vague impression; fanciful notion; inkling. 
5. meaning or significance; 6 . Music a theme or figure.  7. 
Philos. according to Plato, a model or archetype of which 
all real things are but imperfect imitations and form which 
their existence derives; in modern philosophy, used 
variously to mean the immediate object of thought, absolute 
truth, etc." 
 
Webster's New World Dictionary (2nd College ed. 1982) 
 
 
4.  Mr. Eszterhas and others will testify that Mr. Eszterhas 
begins to write when he hears voices in his head that 
dictate a story to him.  As soon as he hears these voices, 
he immediately complies with the dictation and, in most 
cases, the screenplay that is produced is produced in a 
matter of weeks. 
 
 
5.   When the four-page story for the screenplay "One Night 
Stand" was "purchased" it was purchased because (a) the four 
pages fully fleshed out the primary elements of the story 
for the screenplay (b) petitioner promised to write a 
screenplay, and (c) Adrian Lynne is attached to direct the 
project.