Music talent show was 'independently created' and did not involve a misuse of confidential information, rules Court of Appeal

Out-Law News | 07 Dec 2016 | 2:48 pm | 2 min. read

A music talent show broadcast on Sky was "independently created", the UK Court of Appeal has ruled, dismissing claims that the show copied features contained in a pitch for another talent show made to the broadcaster the year previously.

The Court rejected claims from Brian Wade and Geraldine Perry, the co-creators and promoters of proposed television talent show 'The Real Deal' (TRD), that Sky had misused confidential information when developing the format of 'Must Be The Music' (MBTM), a show which Sky broadcast in 2010.

Wade and Perry claimed that the features of MBTM, which Sky had agreed in partnership with another TV production company that produced the show, stemmed from ideas it had shared in a pitch to a Sky commissioning editor in 2009 and in subsequent slides from the presentation that they had shared with the Sky employee.

Their claims for misuse of confidential information had previously been rejected by the High Court in London. Their appeal against that judgment has now been dismissed by the Court of Appeal.

In his leading ruling for the Court, Lord Justice Briggs said the High Court judge was "entitled to find that all elements in MBTM were independently created, rather than copied, consciously or sub-consciously, from TRD".

"Format rights are notoriously difficult to protect given that they are generally a collection of individual ideas and intellectual property rights packaged together," said intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com. "Trying to protect such a collection as confidential information is always going to be difficult for a talent show where the core format has been done many, many times before and so it is not surprising that the Court of Appeal decided the case the way it did."

"In terms of practical tips for the protection of format rights, would-be producers of TV shows should register all names as trade marks, all set designs as design rights, mark all documents with the copyright symbol and conduct all negotiations on the basis of a non-disclosure agreement. Finally, the format should be lodged with a body such as the Format Recognition and Protection Association so that there is independent evidence of the format should that be required in the future," he said.

One aspect of the appeal brought by Wade and Perry concerned the approach the High Court judge had taken to assessing whether their ideas benefited from "the necessary quality of confidence" to bring a claim for misuse of confidential information.

In the High Court ruling, the judge had rejected the idea that individual features of the TV format Wade and Perry envisaged benefited from the necessary quality of confidence on their own.

Although the judge did outline "what he regarded as the best available combination" of those individual features, he deemed it unnecessary to determine whether that combination of elements shared between TRD and MBTM had the necessary quality of confidence, according to the Court of Appeal's ruling.

The Court of Appeal also deemed it unnecessary to rule on the issue, after determining that Sky had sufficiently proved that the MBTM show had been independently created.

It remains in question whether the law of confidence can provide TV format creators with redress in cases where their ideas have not been wholly copied but a combination of elements of their show, which on their own do not qualify as confidential information, are copied by rivals.

In the UK, under common law, a breach of confidence is a civil offence. The misuse of confidential information by a business can lead to them being forced to pay damages.

However, to enforce such a claim, businesses must prove their information has the "necessary quality of confidence about it" and that the recipient was placed under an obligation of confidence when the information was shared with them. The confider must also show that there has been "unauthorised use or disclosure" by the recipient taken into their confidence and that this led to their detriment.