Singer-songwriter show suffers in Sky secrecy shenanigans

This one is about the purported misuse of confidential information in the idea for yet another musical talent show. Winning the year’s recording contract is BSkyB, who was found to have acquired confidential information but not misused it. Voted off in the High Court were Wade and Perry, two individuals working in the music industry who unsuccessfully represented themselves at trial. The case is (1) Brian Wade (2) Geraldine Perry V British Sky Broadcasting Limited [2014] EWHC 634 and although Simon Cowell has nothing to do with it he still gets a mention in the judgment.

It’s time! to face! the music!

In 2006, Wade and Perry came up with the idea for an X-Factor type show in which contestants performed their own original material, rather than covers. Following each episode, this material would be available for download so that, if popular, it would make the charts. In other ways the format was very familiar: start with auditions and then whittle down to the record label-winning contestant. It would be called “The Real Deal”.

In 2009, they pitched the idea to Sky using a deck of PowerPoint slides. Sky made all the right noises but just as Wade and Perry were packing for boot camp, in 2010 Sky decided not to commission The Real Deal.

Later in 2010 it emerged that Sky was making its own music talent show, Must Be The Music. It was using the same director as Wade and Perry had proposed. Its show would feature downloads and original music, but it was not a whittle format and the end prize was cash and not a record deal. It ran in the UK that year but was cancelled in 2011. It achieved more success abroad; in Poland it had reached its sixth series by the end of last year.

Wade and Perry sued for breach of confidence. They claimed that their idea and the PowerPoint deck were confidential information, and the similarities between the two programmes and the timing of the latter’s commission following their pitch demonstrated the Must Be The Music was derived from their ideas. Sky’s defence was simply that regardless of any similarities, its programme was independently created. Further, Sky argued that Wade and Perry’s ideas were too vague to attract the protection of the law of confidence. Battle was joined and a sing-off commenced, with the decision resting in the hands of judges Louis Walsh*, Gary Barlow* and Mr Justice Colin Birss (*not really).

I fought the law and the law won

Birss J applied the classic test for breach of confidence, being the three requirements enunciated in Coco v Clarke [1969] RPC 4 and recently restated by Mr Justice Arnold in Force India Formula 1 Team Limited v One Malaysia Racing Team [2013] RPC 29:

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.

The highlight of the judgment for
 this Kat was the judge referring to
to Dizzie Rascal as "Mr Rascal"

Birss J noted that ideas “which are too vague” are not protected. He considered the differences between a pitch document and a detailed treatment for a programme. He did not think it right that the law would only protect the latter, the former could be protected if it was a “worked out and detailed pitch which includes concrete ideas”. It is worth noting that the law of confidence is essentially a common law concept in English law, but all that will change if the EU’s proposed trade secrets directive comes to fruition.

So far as the burden of proof is concerned, the judge noted that in copyright cases infringement may be proved by raising a sufficiently strong inference of copying (by pointing to significant similarities and an opportunity of copying) which the defendant fails to rebut by proving independent derivation. The judge felt the same logic could apply to breach of confidence cases.

Here’s the result of the public vote:

With this in mind the judge found as follows:

• The pitch was confidential and the ideas and PowerPoint deck together contained a sufficiently detailed proposal to attract the necessary quality of confidence.
• However, Wade and Perry’s case was not that the deck was copied in its entirety, but that ideas within it were copied. The judge referred to 14 elements in the deck, eight of which the claimants relied upon (relating to the format, the use of downloads, original material, etc) and a further six they did not (contestants selected by invitation only, use of off screen judges, etc).
• The individual ideas relied upon lacked the necessary quality of confidence. On their own they were not original. The idea of using singer-songwriters as judges or contestants had been used before. The idea of chart-eligible downloads was known to the industry.
• Wade and Perry’s best case was to rely upon a combination of elements from the deck: (i) chart eligible downloads during the run of the show; (ii) judges being exclusively singer-songwriters; (iii) contestants being singer-songwriters; and (iv) it being a prime time programme. The judge was not, however, entirely satisfied that these elements enjoyed the necessary quality of confidence to be protected by law, but given his other conclusions he did not have to decide this.
• There were some “major points of similarity relating to downloads and the emphasis on singer-songwriters as judges and contestants”, along with a number of differences. Without explanation from Sky, the judge found that the inference of copying from these similarities “has some substance but it is not at all overwhelming”.
• However, Sky’s witnesses gave a complete version of events detailing independent creation in which there were no gaps. Essentially, the evidence demonstrated that the ideas for Must Be The Music came from other sources than the one person at Sky who had seen the pitch and the deck. That said, the judge noted that “the evidence from Sky's witnesses does not entirely rule out the possibility of a transfer of ideas which took place unwittingly, unconsciously or which has been genuinely and truly forgotten”.

Birss J concluded:

“Sky's evidence was cogent and taken as a whole presented a clear and persuasive picture. There are similarities between the show and some ideas in the deck but the evidence explained their origin. The inference that the ideas which Must Be The Music embodies in common with The Real Deal must have been derived from the deck is not strong enough to leave me in any real doubt about the right conclusion in this case. I accept Sky's evidence. I find that Must Be The Music was created entirely independently of The Real Deal.”

With independent derivation proved, Wade and Perry’s claim failed and their dreams of reaching the Christmas no.1 spot must now be replaced with hope of an appearance on BBC Breakfast and perhaps the chance to be contestants in Celebrity Big Brother in a couple of years.