Brian Wade and Geraldine Perry devised an idea for a primetime music talent show, to be called The Real Deal, featuring artists who write and perform their own material. The on-screen judges were to be celebrity singer-songwriters. The original tracks the artists performed on the show were to be made available for download from the next day onwards and would be eligible for inclusion in the national chart. The winner, and possibly other contestants, would receive a contract with a major record label.
The idea was pitched to the defendant ("Sky") in June 2009. Sky received the pitch enthusiastically and expressed some encouraging interest but decided not to commission The Real Deal.
In 2010 Sky produced a new music talent show called Must Be The Music. It was a competition which was open to all musicians, singers and instrumentalists. The winner received a £100,000 cash prize rather than a record contract. Every song performed on the show was available for immediate download from iTunes and Sky Songs with all the net profits of the songs and merchandise going to the musicians. The musicians were free to perform whatever music they wanted, whether it was a piece of their own composition or a cover.
The claimants alleged misuse of confidential information. A duty of confidence arises when confidential information comes to a person’s knowledge where he has notice, or has agreed, that the information is confidential with the effect that he should be precluded from disclosing the information to others or using it for his own benefit.
Sky accepted that the pitch materials for The Real Deal were imparted to Sky in confidence, even though confidentiality was not discussed at the meeting.
Mr Justice Birss in the High Court said in his judgment that a worked out and detailed pitch which includes concrete ideas for a television programme is capable of being protected by the law of confidence as long as the other aspects of the law are satisfied. The fact that it is not as detailed as a full treatment does not mean it is not protectable, but if it is too vague and unoriginal, or both, it will not be protected. Everything depends on the facts and the evidence. The court accepted that, in this case, the pitch materials as a whole had the necessary quality of confidence to be protected by the law of confidential information.
The claimants alleged that some of the ideas set out in their pitch had been taken and used in Must Be The Music and that an inference that these ideas were copied or derived from their pitch should be drawn from the similarity between the two formats - the coincidences of similarity and timing were too great to be accounted for by independent creation.
Sky maintained that (a) Must Be The Music was conceived, developed and produced entirely independently of The Real Deal and (b) the key elements of The Real Deal were unoriginal and too vague to be protected.
Whilst an inference of copying might be drawn from significant similarities between the two formats and Sky’s knowledge of The Real Deal, the court concluded that, on the evidence, Sky had not misused confidential information in any way and that Must Be The Music was derived independently. Having reached this conclusion, it was not necessary for the court to make any finding on the protectability of the claimants’ ideas.
Points of interest
- The claimants chose to proceed on the basis of breach of confidence rather than infringement of copyright.
- To guard against claims of this nature, it is important to keep detailed records of how your format has been developed if you want to demonstrate that you have not copied another format.
- As the claimants may have learned in this case, it may only be when the case comes to court that you can assess the strength of the defendants’ evidence of independent derivation. And by that time, the claimants will have incurred substantial costs of their own and the risk of being ordered to pay the defendants’ costs as well.