How did the high court approach a claim of misusing confidential information contained in a TV format pitch document? [caption id="attachment_5741" align="alignnone" width="300"] This chap's the Real Deal http://www.flickr.com/photos/brennanmoore/[/caption] Original news Wade v British Sky Broadcasting [2014] EWHC 634 (Ch), [2014] All ER (D) 103 (Mar) The claimants conceived an idea for a music talent television programme and pitched the idea to Sky. There was a misuse of confidential information claim. The argument was that Sky misused the confidential information by taking ideas from the claimants' format and using them to create a music talent show. What issues did this case raise? The claimants prepared a 'deck' of Powerpoint slides to encapsulate their pitch for a music talent television programme. The show, a primetime music talent show featuring artists who write and perform their own material, was to be called 'The Real Deal'. A key idea underpinning The Real Deal was a reaction against the style of the primetime TV shows--the X-Factor and Britain's Got Talent. The claimants pitched to Sky and a copy of the deck was sent to Sky. Sky decided not to commission the show but later made a new music talent show called 'Must Be The Music'. The claimants contended that Sky misused their confidential information by taking ideas for The Real Deal from the deck and using them to create Must Be The Music. The claimants put forward an inference of copying. Sky denied copying (Must Be The Music was independently derived) and argued in the alternative that the key elements of The Real Deal relied on were unoriginal and too vague to be protected. What cause of action did the claimants plead in this case and what did they leave out? Misuse of confidential information was the single cause of action in this case. TV format cases often have other causes of action pleaded such as copyright infringement based on infringement of literary, artistic or dramatic works, trade mark infringement or breach of contract (see our Practice Note: Television format rights). The claimants alleged Sky had copied a number of ideas from a pitch document--a deck of Powerpoint slides. With this form of format, it is perhaps unlikely the claimants would have made out copyright and/or trade mark infringement claims. On copyright infringement, the claimants may have found it difficult to prove the element of substantiality--that Sky had appropriated a mode of expression from the deck rather than just drawing upon common themes. In terms of trade mark infringement the name of the claimants' show was not taken nor were any logos, claimed by the claimants. Was there anything new in how the court approached the misuse of confidential information claim? The court's approach--the standard test The court applied the three elements necessary for liability for breach of confidence identified in Coco v Clark [1969] RPC 41 and restated in Force India Formula One Team Ltd v 1 Malaysia Racing Team SDN BHD [2012] EWHC 616 (Ch), [2012] All ER (D) 198 (Mar): information in respect of which relief is sought must have the 'necessary quality of confidence about it' the information must have been imparted in circumstances importing an obligation of confidence there must be an unauthorised use or disclosure of that information. There was nothing new in this approach. The court's approach--the burden of proof The claimants' case was that Sky had misused confidential information by taking ideas for The Real Deal from the deck to use to create Must Be the Music. In assessing whether similarities between the features contained in the deck and Sky's show were indicative of copying, the court used the principle established in copyright cases that infringement may be proved by raising an inference of copying which the defendant fails to rebut. The defendant may seek to rebut it by proving independent derivation. The court felt that this logic was capable of applying in some breach of confidence cases. Therefore, the court approached the case by considering the inference to be drawn from the circumstances first, then Sky's positive case of independent derivation. The court's approach--was the deck capable of protection? Sky (see above) had advanced an argument that the key elements of The Real Deal, contained in the deck that the claimants relied on, were unoriginal and too vague to be protected. In its assessment, the court stated 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...everything depends on the facts and the evidence'. On the facts, the court accepted that the deck was protectable: 'The deck as a whole has the necessary quality of confidence to be protected by the law of confidential information. It contains a proposal which is worked out it some detail and is capable of being used as a firm basis on which to take a project forwards. It is not merely a set of vague aspirations'. However, the claimants had not alleged that Sky had published the deck. The allegation was that some ideas of the deck had been taken and used in Must Be The Music. The court examined the ideas alone and in combination. None of the individual ideas were held to have the necessary quality of confidence. For the combination (of an emphasis on singer-songwriters and chart eligible downloads in a music talent show) the court showed concern that the ideas were not sufficiently detailed to be protected and were not necessarily reflective of the deck's contents but more cherry picked with the benefit of hindsight. Whether the particular combination of elements which Must Be The Music had in common with the deck for The Real Deal had the necessary quality of confidence to be protected, was not decided--other factors determined the case. The court's approach--Sky's positive case of independent derivation On the case for independent derivation: the court commented that Sky had called all the relevant individuals to establish its version of events, with no gaps while the evidence from Sky's witnesses did not entirely rule out the possibility of a transfer of ideas which took place unwittingly, unconsciously or which had been genuinely and truly forgotten, tell tale indications relied on to show a link between Must Be The Music and The Real Deal did not amount to strong evidence to support the inference that aspects of Must Be The Music were derived from The Real Deal the court decided that Sky's evidence was cogent and taken as a whole presented a clear and persuasive picture there were similarities between the show and some ideas in the deck but Sky's evidence explained their origin the inference that the ideas that Must Be The Music had in common with The Real Deal must have been derived from the deck was not strong enough for the claimants to succeed The court did find that the claimants did impart confidential information to Sky in pitching the deck but Sky's evidence was accepted by the court that Must Be The Music was created entirely independently of The Real Deal. Is it a pointless exercise to bring proceedings for TV format cases? What are the implications for those dealing in this area? The structure and contents of TV (paper) formats vary widely, particularly formats seen in the independent sector. Some formats contain enormous detail on the programme's suggested title, the type of audience to be targeted, a suggested time-slot, length, running order, a (detailed) synopsis, sample games/questions if appropriate, (professional) illustrations, suggested presenters, an outline budget, set design and merchandising opportunities. However, since they are designed to catch the eye of the commissioning team when they are read (along with hundreds of others) or are the basis of a pitch, they are often short on detail. TV formats are usually protectable via a bundle of intellectual property rights (where their component parts are protectable at all). Alleged infringements of television formats often involve the taking of abstract themes and ideas, which can be problematic. Where copying has been alleged, similarities found are often found to be at a high level of generality or are shared with works that preceded the copyright works relied on. These are hurdles that mean cases based on breach of confidence, passing off or copyright infringements are notoriously difficult to make out. In the event trade marks have been copied from an existing programme or from a detailed format, the situation is usually more clear cut. However, since television programmes are costly to make and legal advice is usually available as part of the process of making the programme, any such trade mark infringement would be picked up and eliminated at an early stage. Those 'in the industry' dealing day to day with TV formats do not appear to share the relatively negative attitude adopted by lawyers on the protectability of TV formats. The lawyers' view is based on an examination of English and international case law in this area. In practice, there appear to be gentlemen's agreements that discourage the appropriation of the contents of TV formats obtained during, for example, pitches. The industry is small and deals with those who copy simply, by not working with them and telling others who are influential in the business what the copy-cats have done. However, few claimants are successful in obtaining a finding of infringement or misuse of confidential information. In order to maximise prospects of success, those dealing with formats should consider including as much detail as possible in the format, such as recording dramatic works by way of film, registering any trade marks that might be applicable to the format, using non disclosure agreements where appropriate and consciously devising unusual details that will make the format stand out from what has gone before. Keeping your fingers crossed is also a good idea.