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Sky music show claimants voted off by the High Court

SummarySky has successfully defended a claim in the High Court in which it was accused of misusing confidential information for a TV music talent show in Wade & Perry v British Sky Broadcasting Summary

Sky has successfully defended a claim in the High Court in which it was accused of misusing confidential information for a TV music talent show in Wade & Perry v British Sky Broadcasting Limited [2014] EWHC 634.

Background

The Claimants, Brian Wade and Geraldine Perry, pitched an idea to Sky in 2009 for a music talent show called 'The Real Deal' which was premised on the contestants being singer-songwriters performing their own original material rather than cover versions. The format would start with auditions before the contestants were whittled down to a winner who would be awarded a record-label contract. Contestants' songs would also be available to download from the internet once they had been performed. The idea was pitched using a deck of Powerpoint slides.

Sky showed some initial interest before declining to commission the show. Later in 2010, it emerged that Sky was producing its own music talent show called 'Must Be The Music'. This had a similar, although not identical format to The Real Deal: it featured downloads and original music, but it was not a whittle format and contestants could also be instrumentalists and perform covers if they chose. The prize was £100,000 rather than a record deal.

The similarities with The Real Deal and timing of Must Be The Music's commission led Wade and Perry to sue for breach of confidence, arguing that Must Be The Music was derived from their ideas.

The Law

In the High Court Birss J applied the classic breach of confidence test in Coco v Clarke [1969] RPC:

(a)             the information in respect of which relief is sought must have the "necessary quality of confidence about it";

(b)             the information must have been imparted in circumstances importing an obligation of confidence; and

(c)             there must be an unauthorised use or disclosure of that information.

Judgment

Sky argued that first, the information in the Powerpoint deck did not qualify as confidential information under the Coco test and second, even if it was confidential, it had not been misused by Sky because Must Be The Music had been produced independently.

Birss J concluded that although the Powerpoint deck as a whole was confidential, Sky was not alleged to have misused it (e.g. by publishing it); rather it was alleged to have taken particular ideas from the deck. Turning to these ideas, Birss J held that they did not have the necessary quality of confidence about them individually, but they could be confidential as a combination. Birss J was nevertheless concerned that the combination was not sufficiently detailed to be protected, as it lacked a "concrete format proposal" and risked being "little more than aspirations". Ultimately the judge did not consider this line in depth as he then turned to whether Sky had misused the information and concluded that it had not.

Sky advanced a positive case explaining how Must Be The Music came to be developed entirely independently from the Claimants' pitch. Birss J found Sky's evidence convincing. Although it did not entirely rule out the possibility that transfer of ideas could have taken place unwittingly, unconsciously or which had been genuinely forgotten, Sky's evidence was cogent, clear and presented a persuasive picture. Perhaps most importantly, there were "no gaps" in evidence from Sky's witnesses (of which there were ten).

Commentary

The case highlights the importance of strong and coherent witness evidence for a defendant in a breach of confidence case when it is advancing an argument that the idea it is accused of misusing was in fact developed independently. The judgment should also caution prospective claimants that when relying on confidential information which is in the form of a pitch, this should be a concrete format proposal which is sufficiently detailed to have the necessary quality of confidence about it.

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