I thought I would write a cautionary blog about a recent decision concerning the misuse of confidential information.

The case concerned two individuals, Brian Wade and Geraldine Perry who in 2009 pitched an idea for a new reality music show called The Real Deal to Sky. Instead of singers singing cover versions as in the X Factor, the Real Deal would feature the contestants singing their own compositions. Contestants were to be invited to the audition stage and whittled down to a winner who would receive a record contract. Another key idea was the songs being made available for download soon after being performed. During the pitch Wade and Perry provided Sky with a “deck” of PowerPoint slides which encapsulated their ideas. Despite the pitch being well received Sky rejected the idea.

Less than a year later Sky commissioned a third party, Princess Productions to produce a reality music show called, Must Be The Music. In many ways the shows were similar. Contestants sang their own songs, those songs were made available to download (albeit immediately as opposed to after a short delay) and it used the same director as had been proposed by Wade and Perry. However the show did not have a whittle format, it was open to all comers as opposed to invitation only and the winner won a cash prize as opposed to a recording contract.

Wade and Perry sued Sky for misuse of their confidential information. They claimed their idea and the PowerPoint deck were confidential and, given the facts, that there could be no doubt that Must Be The Music had been derived from this confidential information. Sky’s position was that Must Be The Music was independently created and that, in any event, Wade and Perry’s ideas were too vague to attract protection.

The judge found that although;
1. The pitch and deck were confidential and had sufficient detail to be capable of protection; and
2. A significant number of ideas contained in the deck appeared in Must Be The Music
there was no misuse of confidential information.

This is a classic tale of David v Goliath and on its face it does seem a harsh decision. A pitch is made by ‘David’ and shortly after ‘Goliath’ happens to reproduce a similar idea for himself. However, in this case, Sky had no less than ten witnesses who all gave evidence that it (and Princess Productions) had developed the show independently of the deck. In the face of such evidence it was difficult for a judge to find otherwise. This is especially so given that, while the pitch contained some original ideas, it was not inconceivable that Sky and its team were capable of such creativity.

Our advice when pitching is to always a) mark pitch documents as confidential and add a copyright notice b) always ensure the pitch itself is confidential and 3) always make sure your idea is sufficiently formed to be capable of protection.

Beyond that I’m afraid you just have to hope that whoever you are pitching to respects your creative ideas and their value.

Call us if you would like to learn more about insuring your IP against the risk of infringement.