Not The Real Deal – no copying of TV show format

Wade & Perry v British Sky Broadcasting Ltd [2016] EWCA Civ 1214. The Court of Appeal has ruled that a talent show commissioned by Sky did not misuse confidential information in the form of The Real Deal format pitched to Sky by co-creators Brian Wade and Geraldine Perry.

Business impact

Both commissioners and format creators should try to ensure that there is an appropriate paper trail that could later be relied on as evidence in case of a dispute. Commissioners will want to keep careful records of their in-house development process. As ever, creators will want to try to protect their pitches under suitably drafted non-disclosure agreements, and should specifically mark their pitch materials as confidential.

Decision

The Court of Appeal has ruled that a talent show commissioned by Sky did not misuse confidential information in the form of The Real Deal format pitched to Sky.

The Real Deal was to be a music talent show open to singer-songwriters, featuring well known singer-songwriters as judges. In the show, the contestants would perform cover versions of songs until they reached the final stages, whereupon they would play their own compositions. The original songs would be available for download (and would be chart eligible) the day after broadcast. Contestants would be eliminated week by week until a winner was chosen in the final show.

Creators Brian Wade and Geraldine Perry pitched the idea to Sky, who rejected it. Subsequently Sky developed a separate show, Must Be The Music, which the creators of The Real Deal contended was so similar as to amount of breach of confidence, i.e. that Sky had used their format.

Must Be the Music was a music competition open to all musicians, not just singer-songwriters and it did not use a weekly elimination format. However, the programme did allow viewers to download the contestants’ performances on the same day, with the songs having eligibility for the charts. Sky contested the format was based on a separate pitch from Princess Productions.

At first instance, the High Court listened to comprehensive witness evidence explaining the process by which Sky’s show had been conceived and developed.  Despite some notable similarities between the two formats, the High Court found that it had been created entirely independently from The Real Deal without either deliberate or subconscious copying.

On appeal, the co-creators of the format argued that the High Court had failed to compare the combination of ideas in the overall formats of the two programmes, and had wrongly inferred that Sky had independently created its show.  The appeal was dismissed on the basis that the High Court had reviewed the ideas in aggregate and had balanced a weak inference of copying with credible evidence that Sky had independently created its show.

Comment

This is the first Court of Appeal case addressing misuse of confidential information in TV format rights for a number of years. This decision turns on the particular facts of the case, and misuse of confidential information cannot safely be ruled out – especially where there is potential evidence of a causal nexus between a pitched format and a show that is later broadcast.

Emily Owen-Evans, Trainee Solicitor, Simkins LLP