Was “Must be the music” “The Real Deal”?

Who: Wade and others v British Sky Broadcasting

When: 11 March 2014 (judgment handed down)

Where: High Court of Justice, London

Law stated as at: 11 March 2014

What happened:

On 11 March 2014, Mr Justice Birss in the High Court handed down a judgement dismissing a claim for breach of confidence against British Sky Broadcasting (“Sky”) in relation to a proposal for a music-based talent show.

The judge held that while the ideas contained in the claimants’ pitch to Sky for a music show called The Real Deal may not have been confidential information as individual ideas, as a whole and in combination with one another, those ideas may in fact have capable of being protected under the law of confidential information.

However on the facts before him, the judge found that Sky had nevertheless independently developed their own show (called Must Be The Music) without reference to the claimants’ information and materials.  Accordingly he was not required to rule on whether or not the claimants’ TV format proposal was in fact confidential information for the purposes of a breach of confidence claim.

The Real Deal

The claimants, Mr Wade and Ms Perry, originally pitched their idea for a music talent show called The Real Deal to Sky in June 2009, by way of a PowerPoint presentation.  They did so in partnership with a television director called Mr van Someren and another individual.  A copy of the PowerPoint materials was retained by Sky.  The Real Deal would have a focus on singer/songwriters performing a mixture of cover versions as well as their own music, with chart downloads of the music performed on the show being available throughout the show’s run.

Must Be The Music

In February 2010 Sky informed the claimants that they would not be developing The Real Deal.  Shortly afterwards Sky began development of their own music-based show called Must Be The Music, which also featured musicians performing a mixture of cover versions and original music as well as downloads of the performed music being made available to the public.  Mr van Someren was hired to direct Must Be The Music.

The claim

Mr Wade and Ms Perry claimed that Sky had misused the confidential information comprised in their pitch for The Real Deal by developing and broadcasting Must Be The Music.  In particular they pointed to the following features of their pitch for The Real Deal which they perceived had been replicated in Must Be The Music:

1. the live broadcasts would be finals of the competition in which finalists were selected by audition in two stages;

2. there would be eight finalists, one to be eliminated each week;

3. the on-screen panel of judges would be celebrity singer-songwriters, not general celebrities or industry executives;

4. for the first four shows, competitors would perform covers which they would choose, arrange and perform; from the fifth show on, they would perform their own original compositions, and the emphasis would, therefore, be on singer-songwriters both as contestants and as judges;

5. the original tracks from week five on would be available for download and chart-eligible while the shows proceeded;

6. the contestants would be filmed preparing for their performances;

7. as for the branding features, the presentation emphasised the significance of the show’s name, not casually chosen but intended to mark the emphasis on serious creativity and professionalism; and

8. coloured lapel-style badges featured throughout the presentation.
Sky’s defence was that:

1. they had developed Must Be The Music completely independently of The Real Deal proposal; and in the alternative;

2. the ideas relied upon by the claimants lacked the necessary quality of confidence.  In particular, the elements relied upon by the claimants were insufficiently original and too vague to be capable of protection as confidential information.

The claimants ceased to be represented shortly before the trial, leading them to represent themselves in court.  There is no further information in the judgment regarding the circumstances which led the claimants to do so.

The law of confidential information

In general, and absent a contractual obligation under a written Confidentiality Agreement, a duty of confidence will arise when confidential information becomes known to a person under circumstances in which he or she has notice, or is held to have agreed that the information is confidential, with the effect that it would be just that he or she should be precluded from disclosing the information to others, or use it for his or her own benefit. 

Additionally, the obligation of confidentiality only exists for so long as the information remains confidential and no duty applies to information which is useless information or trivia.

The judge’s findings of fact

The judge was satisfied that the claimants’ pitch for The Real Deal was imparted under circumstances in which Sky would have regarded it as confidential.  While the elements relied upon by the claimants were indeed features of Must Be The Music, there were many differences between Must Be The Music and the ideas proposed for The Real Deal.

Crucial to the judge’s final ruling was his finding on the factual evidence before him that Sky had in fact completely independently developed Must Be The Music, alongside a third party production company which had previously produced a dance-based talent show for Sky.  Sky was able to provide cogent and compelling evidence chronicling that independent development process and explaining the actual origin of certain ideas that appeared in Must Be The Music, which the claimants had perceived to have been copied from the proposal for The Real Deal.

Having made such a finding, the judge did not find it necessary to rule on whether or not the particular combination of elements relied upon by the claimants had the necessary quality of confidence to be protected by the law.

Why this matters:

Cases relating to TV formats rarely come before the courts and this case highlights the risks inherent in bringing a claim for breach of confidence to court.  A claimant is highly unlikely to know at the outset of such a dispute whether or not the defendant will be able to provide a coherent and compelling narrative explaining how they independently developed a product or piece of work.

In cases such as this, and where a compelling defence does arise in the course of the dispute, whether at a pre-action stage, or at the disclosure or exchange of evidence stages, claimants should urgently undertake an objective re-analysis of the case before them before deciding whether to battle on.

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