Breaches of confidentiality must be the real deal – Wade v British Sky Broadcasting Ltd [2014] EWHC 634

by Reed Smith
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Executive Summary

Despite the industry maxim “where there’s a hit, there’s a writ” and the numerous plagiarism allegations made in the TV business, it is well known in the copyright world that the English courts have refused to recognise a free standing format right in a TV show. This is despite the significant sums that change hands on a regular basis for the development and licensing of such rights.

The judgment in Green –v– New Zealand Broadcasting Corp [1989] 2 All E.R. 1056 (a case relating to the format for Opportunity Knocks) underlines the difficulty in showing that a quiz or game show format amounts to a copyright work.

There have been a handful of subsequent cases in the English courts in which attempts were made to push the boundaries of copyright law to cover a TV format right, but without success.

How then does a creator of a TV format protect its value? And, conversely, how does a broadcaster or producer protect against claims that it has misused information from someone else’s format? Before considering possible methods of protection, it is worth a look at a recent case which is one of the rare few in this area to have reached a trial. The focus of the judgment is on breach of confidence, not copyright infringement.

Case background

The case concerns an unsuccessful claim brought against Sky by Brian Wade and Geraldine Perry for purported misuse of their confidential information relating to an idea Wade and Perry conceived for a new musical talent show to be called “The Real Deal”.

The Claimants had gone through a lengthy pitch process with Sky. The format was reflected in a "deck" of slides, which they presented during that process to a commissioning editor at Sky. Despite receiving encouraging messages over the next few months, they were informed in February 2010 that Sky had decided not to commission the show.

In 2010 it emerged that Sky was making a new music talent show named “Must Be the Music”, produced by one of Shine TV’s subsidiaries, Princess Productions. The show aired that year featuring Dizzie Rascal, Sharleen Spiteri and Jamie Cullum as judges. Ferne Cotton presented. It ran for one series on Sky and has had international success, mostly in Poland.

The Claimants’ case

The Claimants argued that the content of the deck used in the pitch was confidential and that Sky had misused that confidential information when creating Must Be the Music. The Claimants sought to draw inferences from: a) the similarity between the two formats; and b) the fact that Sky’s commissioning editor liked The Real Deal and had possessed a copy of the deck for months.

The Claimants further pointed to the fact that eight of the fourteen elements for The Real Deal had been used in Must Be the Music and to the proximity in timing between the rejection of the pitch and the launch of Sky’s show.

The defence

Sky’s case was that Must Be the Music had been conceived, developed and produced entirely independently of The Real Deal. Sky also contended that the Claimants’ ideas were unoriginal and too vague to attract protection as confidential information.

Judgment in favour of Sky

Birss, J accepted that The Real Deal was imparted to Sky in circumstances where an obligation of confidentiality was implied. He also found that the deck as a whole was protectable as confidential information. Accordingly, Sky was not free to publish the deck. However, that did not help the Claimants. It was alleged that certain elements in the deck had been taken and used in Must Be the Music. The judge then analysed which elements set out in the deck were relied upon by the Claimants, and which elements in the deck were not alleged to have been taken.

He accepted that there were a number of differences between the show and the deck but he recognised that it was understandable in the circumstances of the case that the Claimants were concerned. Accordingly, he was not prepared to dismiss without hearing from Sky the inference that Sky derived ideas from the deck for The Real Deal. The inference had some substance though it was “not at all overwhelming”. The court heard Sky’s version of events explaining how Must Be the Music came to be developed, finding that Sky’s evidence taken as a whole presented a clear and persuasive picture which explained the origins of the format of Must Be the Music.

Birss, J held that, although the Claimants did impart confidential information as part of the pitch to Sky, Sky did not misuse the information in any way and Must Be the Music was created independently.

Practical steps to protect a TV format

While it is generally accepted that TV programme creation is an evolutionary process and elements of programmes are often borrowed from others, disputes over format rights are common in the industry worldwide. We have set out a number of practical steps that can be taken by content creators and commissioners to avoid unnecessary disagreements down the line. The steps discussed here are by no means exhaustive. However, they are a good starting point to ensure a record is kept and processes are put in place to document the timeline from development to commissioning.

For content creators:

  1. Record all ideas, drafts and revisions: keep clear written records of all stages of development of a format.
  2. Create and maintain a comprehensive format bible and set out not only the core structure of the programme but also: the “rules” and elements of the format and how they will work together; the order and mechanics of the show; where it will be set and particular desired location options; technical production aspects such as camera angles, lighting and details of key individuals; the concept and feel of the show, for example whether the tone will be comedic or serious; the theme music that will be linked to the concept and points at which music will be played within the programme; the way in which characters or participants may be portrayed; and the methods of exploitation of the show otherwise than on TV (e.g. second screening and additional content online). The elements of the format are themselves unlikely to be particularly innovative or amount to more than a collection of ideas but put together they could form an original and protectable piece of work.
  3. Consider FRAPA registration: formats and any improvements can be registered with the trade body Format Recognition and Protection Association (FRAPA): www.frapa.org.
  4. Maintain the confidentiality of the work: mark submission and pitch material as confidential, include notices that it can’t be copied and ask for the material to be returned where appropriate. Consider asking commissioners to enter into an NDA if you have the bargaining power.
  5. Observe the “Code of Practice for Submission of Programme Proposals” from the Alliance for the Protection of Copyright (available at www.bectu.org.uk) and encourage other connected parties to do the same.
  6. Check that any proposed domain names and/or trade marks are not already in use and register any relevant domain names and trade marks as soon as possible.

For commissioners:

  1. Produce and maintain internal policies for the receipt, acknowledgement and return of internal and external format proposals. Ensure that submissions are not distributed beyond the few individuals responsible for reviewing them.
  2. Consider asking for an indemnity from the content creator against any future format infringement or breach of confidentiality claims.

Note for the future: presently a claimant wishing to establish a breach of confidence in England has to rely on the common law. The European Commission’s draft directive on the protection of trade secrets (which could enter into force by the end of the year) aims to harmonise the legislative protection across Europe in this area in relation to confidential information falling within the definition of a trade secret.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

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