Reality Bites

A LOOK AT REALITY TELEVISION CASE LAW AND BREACH OF CONFIDENCE

In about 2006, Brian Wade and Geraldine Perry conceived an idea for a reality television programme. The show, to be called “The Real Deal”, was to be a music talent show featuring artists who write and perform their own material. The key element was that the original track performed by the artist on the show would be available for download after the show and eligible for inclusion in the national chart. The winner of the competition would receive a contract with a major record label.

Wade and Perry pitched their idea to various major record companies and BBC but all were uninterested, particularly in light of the fact that the show featured original music. Wade and Perry adjusted their concept so that contestants would sing covers as well as original material. Wade and Perry prepared a slide show in order to pitch their concept to British Sky Broadcasting Limited (Sky). After Sky expressed interest in the concept, Wade and Perry forwarded their slide show to Sky in order for a final decision to be made. However, Sky ultimately decided not to commission The Real Deal.

In 2010, it transpired that Sky was developing a new music talent show called Must Be The Music. Like The Real Deal, this show would incorporate downloading and original music. When Wade and Perry confronted Sky, it argued that, although the two shows contained similar elements, they were actually very different.

Must Be The Music aired later that year and the show as well as the acts enjoyed some success. However, the audience ratings were poor and Sky cancelled the show in January 2011. However, the show did achieve more success abroad, reaching its sixth series in Poland in September 2013.

In July 2012, Wade and Perry instituted formal legal proceedings in the High Court of Justice of England and Wales against Sky based on misuse of confidential information. They contended that Sky misused the confidential information in their slide show by taking ideas from The Real Deal and using them to create Must Be The Music. Sky’s defence was that, regardless of any similarities, its programme was independently created and that Wade and Perry’s ideas were too vague to attract the protection of the law of confidence.

The court identified three requirements for liability for breach of confidence:

1. Information in respect of which relief is sought must have the “necessary quality of confidence about it”;
2. The information must have been imparted in circumstances importing an obligation of confidence; and
3. There must be an unauthorised use or disclosure of that information.

Wade and Perry’s case was that ideas within their slideshow had been copied. Therefore, the judge indentified and considered 14 elements in the slideshow, 8 of which the claimants relied on (relating to the format, use of downloads, original material etc). However, on their own, these ideas were not original as they were all known in the industry and had been used before in other music talent shows. The judge was even convinced that the combination of these elements enjoyed the necessary quality of confidence to be protected by law. It didn’t help that the ideas were expressed as a pitch rather than a fully worked out show. Therefore, the judge found that the ideas were not sufficiently detailed to be protected.

Sky’s witnesses gave a complete version of events which explained that Must Be The Music came from other sources than the person at Sky who had seen Wade and Perry’s pitch and the slideshow and confirmed the independent creation of Must Be The Music. Birss J concluded that “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 the Must Be The Music was created entirely independently of The Real Deal”.

Judgment: Brian Wade and Geraldine Perry v British Sky Broadcasting Limited [2014] EWHC 634

Kim Rademeyer – Partner
kim@rademeyer.co.za