England and Wales High Court (Chancery Division) Decisions

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Cite as: [2014] EWHC 634 (Ch)

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		Neutral Citation Number: [2014] EWHC 634 (Ch)
		Case No: HC12A02971

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL

11/03/2014

B e f o r e :

MR JUSTICE BIRSS
____________________

Between:

	(1) BRIAN WADE (2) GERALDINE PERRY	Claimants
	- and -
	BRITISH SKY BROADCASTING LIMITED	Defendant

____________________

The Claimants acting in person
John Baldwin QC and Lindsay Lane (instructed by Charles Russell) for the Defendant
Hearing dates: 18th, 19th, 20th, 21st February 2014
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Birss :

The claimants, Mr Wade and Ms Perry, have had successful careers in the music business. In about 2006 they conceived an idea for a television programme. The show was to be called The Real Deal. It was to be a primetime music talent show that features artists who write and perform their own material. The emphasis was on singer-songwriters in the widest sense, that is to say on artists who performed a song they had written but including bands and vocal groups as well as individuals. The on-screen judges were to be celebrity singer-songwriters and not managers, executives or A&R men. Another key element in the idea was that the original track the artists perform on the Saturday was to be made available for download from the Sunday onwards and would be eligible for inclusion in the national chart. Therefore the potential existed for acts performing on The Real Deal to achieve chart positions during the course of the series. Another element consistent with being on primetime TV was that the show would involve catchy classic pop songs. Off screen experts were to ensure that the finalists had great songs for the live finals. By offering a programme genre that was a proven winner (i.e. a music talent show) and adding the twist of employing performer written music, the aim was to take the ratings and moral high ground.

The format started with auditions in which potential contestants were invited to perform in front of a panel and some invited back for a second audition where selections for the live finals were made. Eight contestants would be selected for the live finals. The live shows would adopt what is known as a "whittle" format starting with eight contestants in the first show and losing one per show until the final. The winner, and possibly other contestants, would receive a contract with a major record label allowing them to advance their careers in the music business.

The claimants formed a group called The Real Deal Partnership including themselves, Lester Mordue and Tim van Someren. Amongst other jobs in television Mr Mordue had been Head of Programming at MTV. Mr van Someren was an experienced television director. The Real Deal Partnership was a credible team. Two major record companies EMI and Universal expressed genuine interest in the show.

The Real Deal Partnership pitched the idea to Jo Wallace at the BBC in November 2008. She was not interested. She was particularly concerned with the emphasis on original music. She had concerns over whether a show featuring original music would work for a primetime BBC slot.

The Real Deal Partnership adjusted their ideas. Instead of focussing entirely on original music, in the first four live shows the contestants would sing cover versions. After that the last four contestants would each sing an original song and a cover version. By building up the acts during the series as part of the behind-the-scenes "journey", the viewer would know the acts well enough to be curious to hear a track of their own composition. That way The Real Deal was not veering away from its fundamental ethos to showcase and champion new singer-songwriter talent and still revolved around original music.

One of the key ideas underpinning The Real Deal was a reaction against the style of the enormously successful primetime television music talent shows: the X-Factor and Britain's Got Talent.

The Real Deal Partnership prepared a "deck" of Powerpoint slides to encapsulate their pitch. The deck was branded with graphic depictions of lapel badges featuring the name The Real Deal written in various font styles to echo well known logos of famous pop groups.

On 17^th June 2009 The Real Deal Partnership pitched their ideas to Clare Hollywood, a commissioning editor at the defendant ("Sky"). The pitch was based on the deck. She received the pitch enthusiastically and expressed some encouraging interest in the project. After the meeting she was sent a copy of the deck. Over the next few months The Real Deal Partnership received some encouraging messages from Ms Hollywood but no final conclusion.

On 12^th February 2010 they received a message telling The Real Deal Partnership that Sky had decided not to commission The Real Deal.

Later in 2010 it emerged that Sky were making a new music talent show. It was called Must Be The Music. Mr van Someren was invited to direct the new show. On 29^th April 2010 he met Sky staff involved in the new show, Nicholas Steinberg and Duncan Gray. Mr Steinberg was the Executive Producer for the show and Mr Gray, who had been an Entertainment Commissioner, was now Head of Entertainment. Mr van Someren was taken on and employed by Princess Productions to be the series director of Must Be The Music. Princess Productions were the company who were producing the show for Sky.

By June 2010 Mr van Someren was working on the auditions for Must Be The Music. At this stage Sky had begun to publicise the programme. Mr Wade saw online that the new Sky show was featuring downloading and original music. He regarded them as aspects from The Real Deal and emailed Mr van Someren.

Mr van Someren replied by email explaining that from his perspective the two shows were different. The acts were not going to be big hit singer songwriters because out of the 23 acts auditioned that day only 4 were traditional bands whereas the rest were novelty acts such as a "weird folk ukulele group" and a classical harpist. He noted that an element in common was the panel of judges: the panel for Must Be The Music was to be Jamie Cullum, Sharleen Spiteri and Dizzie Rascal (although Will Young was standing in) and they were "the sort we'd love". He concluded:

"So there are elements, but the spirit is very different. Some are playing their own music but most are doing covers."

Nevertheless Mr Wade and Ms Perry were concerned that The Real Deal had been copied by Sky in order to produce Must Be The Music.

Must Be The Music aired in August and September 2010. The format of the show was as follows. It was a music competition which was open to all musicians, in other words singers but also performers who might play an instrument. The audition process led to 15 acts being selected by the judges for three studio finals with a five minute public voting window at the end of the show to decide which two acts would go forward to the final. The final took place in Wembley Arena. The winner received a £100,000 cash prize rather than a record contract. Every song performed on the show was available for immediate download from iTunes and Sky Songs with all the net profits of the songs and merchandise going to the musicians. The musicians were free to perform whatever music they wanted, whether it was a piece of their own composition or a cover. The judges were the three individuals mentioned above.

The first show for Must Be The Music was broadcast on 15^th August 2010 and the final was in September. In the three semi-finals a majority of the acts were performing music of their own composition but they did not all do that. One semi finalist was a gospel choir which performed a cover of the well known hit "Lovely Day" and another semi-finalist was a steel band who performed a cover of "Don't Stop The Music". Not all the acts included vocal performances. The semi finalists included an Irish fiddler. Of the six acts in the final, five performed their own original compositions and one, a young harpist, performed a cover, although she had performed an original song in her semi-final. The winner of Must Be The Music was "Emma's Imagination" a 27 year old singer-songwriter.

The acts enjoyed some success in the charts during the show with their downloaded tracks. In their semi-final a duo called Pepper & Piano reached No. 1 in the UK Independent charts and No. 7 in the overall UK chart. Many other acts achieved chart positions too. In the final Emma's Imagination also reached No. 1 in the UK independent chart.

Although critically acclaimed, the UK audience ratings for Must Be The Music were poor and Sky cancelled the show in January 2011. However Must Be The Music achieved more success abroad. Sky sold the show in Poland where it had reached its sixth series by September 2013.

Mr Wade and Ms Perry were not the only people to see a link between Must Be The Music and The Real Deal. A friend of theirs, Simon London, who had worked in the television industry for 20 years and to whom they had pitched The Real Deal at some point in 2008 was watching Must Be The Music in the summer of 2010. When he saw it he assumed it was the show the claimants had pitched to him. He sent them his congratulations by text. When he found out that Must Be The Music was not just The Real Deal with a different title he was shocked.

The claim form was issued in July 2012. Although the claimants employed solicitors and counsel for most of the proceedings, shortly before trial the claimants ceased to be represented. They conducted the trial themselves. To do this must have been a difficult and daunting task but they undertook it with courtesy and care.

The Claimants' case

The Claimants' case is based on misuse of confidential information. They contend that the contents of the deck, as a detailed proposal for a television programme, were confidential and that Sky was obliged not to misuse that confidence. They contend that Sky misused that confidential information by taking ideas for The Real Deal from the deck and using them to create Must Be The Music.

The claimants' case is that an inference that ideas were copied or derived from the deck should be drawn from the following main points:

i) the similarity between The Real Deal and Must Be The Music;

ii) the fact that Sky's commissioning editor liked The Real Deal, was given a copy of the deck, and kept it for many months;

iii) the timing of the events: the pitch was in June 2009, it was followed by encouraging emails, the pitch was rejected in February 2010, Must Be The Music was made in the first half of 2010 and broadcast in August of that year.

In addition the claimants rely on some other tell tale indications in the evidence to support their case that ideas used in Must Be The Music were derived from the deck.

Overall the claimants argue that the coincidences of similarity and timing are too great to be accounted for by independent creation and that Sky must have acted in breach of confidence.

The defendant's case

The major element of Sky's defence is a positive case that irrespective of the deck and its being in Sky's possession, Must Be The Music was conceived, developed and produced entirely independently of The Real Deal. That case will depend on the evidence.

Separately Sky also contends that the law requires ideas to have the necessary quality of confidence if they are to be protectable in an action of this kind. Sky argues that the key elements of The Real Deal on which the claimants rely are unoriginal and too vague to be protected. Even if, which Sky denies, the court were to find that the ideas were derived from the claimants, there is no breach because those ideas are not protectable.

Witnesses

In addition to Mr Wade and Ms Perry, the claimants called the other members of The Real Deal Partnership, Lester Mordue and Tim van Someren and also called Neil Smith, Simon London and Trevor Field.

Naturally Mr Wade and Ms Perry feel very strongly about this case and their evidence reflected that strength of feeling. They believe their ideas were taken and are not prepared to contemplate an alternative explanation. On matters of primary fact their evidence was wholly reliable. Their assessments of what must have or might have happened are not independent and need to be treated with more caution. Of course it is also fair to note that the defendant's witnesses were not independent either.

Mr Mordue was a poor witness. His witness statement was thoroughly unreliable. It contains a number of important assertions which were wrong. In cross-examination he did accept a number of points were wrong but he was argumentative and confused. I will not place weight on Mr Mordue's evidence.

Mr van Someren was and felt himself to be in a difficult position. He was a member of The Real Deal Partnership but was the director of Must Be The Music. His witness statement is notable in that it does not really advance a view that Must Be The Music was derived from or bore significant similarities to The Real Deal. His position was that the emphasis on singer-songwriters which can be seen in the latter stages of Must Be The Music was something he had thought at the time arose naturally through the judges' choices during the audition process. However he explained that in the course of this litigation he had been shown a Princess Productions pitch for Must Be The Music which he said showed that the intention to pursue singer-songwriters existed at an earlier stage. However the cross-examination showed that the pitch document Mr van Someren referred to does not contain the emphasis he suggests. It is entirely consistent with Sky's case that Must Be The Music was open to all. Mr van Someren did not accept that this was the case but I find that the document does not support his position. His general evidence about what happened was essentially reliable (there was a minor point about iTunes which was an error but nothing turns on that) but I do not accept his evidence about the Princess pitch. There is nothing in Mr van Someren's evidence to undermine the impression he formed at the time in 2010 that the emphasis on singer-songwriters in Must Be The Music arose naturally.

Mr Smith's evidence related to the position of the record company Universal. Mr Smith was not an employee of Universal but introduced The Real Deal Partnership to Brian Berg, the Managing Director of Universal Music TV. He explained that Mr Berg expressed interest in The Real Deal and said that if The Real Deal was commissioned for a primetime Saturday evening slot he would be happy to make a contribution of £2m towards the costs on the understanding that Universal would be able to represent the artists appearing on The Real Deal. He was a good witness but his expertise as someone in the music business was not focussed on television. Much of his evidence was really a vehicle for hearsay about Mr Berg. What Mr Smith thought was clever about The Real Deal was an idea for voting by download. This feature is not in the deck and was not presented to Sky.

Simon London explained that he had sent congratulations to the claimants when he saw Must Be The Music, thinking it was their show. He was a fair witness. Like Mr Smith, one of the aspects of The Real Deal which was part of the pitch when it was put to Mr London was voting by download. Mr Smith called this a "killer format". However it is not part of Must Be The Music and he cannot have seen it when watching the programme. His assumption about the origin of Must Be The Music was genuine but it was impressionistic rather than the result of careful analysis.

Mr Field was not cross-examined. His evidence was that EMI were sufficiently interested in The Real Deal to leave the door open for the project to be offered to EMI once it was commissioned by a broadcaster.

The defendant called Clare Hollywood, Lucas Green, Henrietta Conrad, Duncan Gray, Stuart Murphy, Nicholas Steinberg, Matthew Goodwin, Aidan Conway, Monika Herrmann and James Quartermaine.

Ms Hollywood was a commissioning editor at Sky. She explained how she received the pitch from The Real Deal Partnership and her positive reaction to it. She was a good witness. She did not work on Must Be The Music.

Mr Green worked at Princess Productions and developed the format for Must Be The Music. He was an important witness for the defendant. His evidence was that Must Be The Music was developed independently of The Real Deal. He dealt with the development in full and appropriate detail. He said he had not seen the deck until it was shown to him in August 2010 after the claimants complained to Sky.

Counsel for the defendant submitted Mr Green answered questions clearly and without prevarication. That is not an adequate summary of his performance as a witness. Mr Green often made speeches rather than simply focus on answering the questions put to him by Mr Wade. This was unhelpful and unattractive. Nevertheless in my judgment Mr Green was seeking to tell the truth. Subject to the qualification I have mentioned, his evidence was credible.

Henrietta Conrad was the CEO and co-founder of Princess Productions. She oversaw Mr Green's work. She explained how Princess dealt with Sky and how Must Be The Music came to be produced independently of The Real Deal. She had not seen The Real Deal pitch documents until these proceedings. She was a good witness.

Duncan Gray was a commissioning editor at Sky and became Head of Entertainment in January 2010. He had a key role in the commissioning of Must Be The Music in 2010 and explained the process in detail. He was adamant that Must Be The Music was entirely independent of The Real Deal. His testimony sometimes lacked care and was exaggerated but I am sure he was seeking to give honest evidence.

He and Mr Steinberg met Tim van Someren in April 2010 in order to interview him as a potential director. Mr Gray's witness statement said he did not recall the details of the briefing given to Mr van Someren and expressed his view about what would or could have happened (paragraphs 50-54). However in cross-examination he gave the impression that he did recall the conversations clearly (Day 3/407). In my judgment this was an example of Mr Gray's lack of care. The real point was that Mr Gray was very sure Mr van Someren would have known in detail what Must Be The Music was about. I will return to the April meeting below.

Stuart Murphy was Director of Programmes for the channels Sky 1, 2 and 3. He is now Head of Entertainment Channels. He was an entirely honest and clear witness. He had a tendency to exaggerate in order to make his point but this did not undermine his credibility.

Nicholas Steinberg worked at Princess Productions and was the Executive Producer of Must Be The Music from April 2010. He was a good witness. He attended the meeting in April 2010 between himself, Mr Gray and Mr van Someren. Mr Steinberg did not agree entirely with Mr Gray's evidence about the meeting. In as much as it matters, I preferred Mr Steinberg's evidence about that meeting to Mr Gray's. The real point about this meeting was that the claimants believe that Mr van Someren was set up. They believe that Mr van Someren was given the technical information about how the television programme Must Be The Music was to be filmed but was not at that stage given details of the format or "flavour" of the show because it was known that Must Be The Music was a copy of The Real Deal. Sky knew Mr van Someren was involved with The Real Deal but Sky/Princess needed him because he is one of the very few people in the UK who could direct a television programme of this kind. In summarising the claimants' case here I have had to expand upon their submission as presented but the essential argument is advanced.

I do not accept the claimants' case that the dealings between Mr Steinberg, Mr Gray and Mr van Someren were any sort of set up or that information was deliberately withheld from Mr van Someren. Mr Steinberg clearly rejected the idea that anything was being kept from Mr van Someren. His evidence was that his meeting with Mr van Someren was focussed on technical matters. Mr Steinberg explained the reference to the show being between the X Factor and Britain's Got Talent in that context. That reflected Mr van Someren's responsibilities.

Mr Steinberg did think that the director would not be interested in the script or the detail. I think it is more likely than not that Mr van Someren was not given a fully detailed explanation of Must Be The Music at the initial April meeting beyond what was necessary to shoot it. However by the time the show came to be aired Mr van Someren could not have misunderstood the character of the show or the content in the semi-finals or final.

Matthew Goodwin had various roles at Sky. He was responsible for a poster for Must Be The Music which the claimants contended bore a similarity to the deck for The Real Deal. He had not seen the deck for The Real Deal until these proceedings. He explained how the poster was produced and that it was independent. He was a good witness.

Aidan Conway was Head of New Media at Sky at the relevant time. He said the idea of using badges on the web pages for Must Be The Music was his idea and was independent of The Real Deal. He was a good witness.

Monika Herrmann is a freelance digital designer working in a department at Sky. She created the badges used on the Must Be The Music webpages. The idea of badges was not hers, she put it into practice. She was not cross-examined.

James Quartermaine is a solicitor at Charles Russell, the defendant's solicitors. He undertook a comparison of the elements of various music talent shows. His witness statement summarised the results and exhibited the various documents on which it was based. He was unwell and his evidence was admitted under a Civil Evidence Act notice.

The law

The general principle is that a duty of confidence arises when confidential information comes to the knowledge of a person in circumstances where he has notice or is held to have agreed that the information is confidential with the effect that it would be just in the circumstances that he should be precluded from disclosing the information to others or using it for his own benefit.

The obligation of confidentiality only applies to information so long as it remains confidential and a duty does not apply to useless information or trivia (Attorney General v Guardian Newspapers No. 2 [1990] 1 AC 109 per Lord Goff).

In Coco v Clarke [1969] RPC 41 Megarry J identified three requirements for liability for breach of confidence:

a) 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;

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

These principles were recently restated in Force India Formula 1 Team Limited v One Malaysia Racing Team [2013] RPC 29 by Arnold J at paragraphs [215]-[217].

In Saltman Engineering v Campbell (1948) 65 RPC 205 the Court of Appeal (Lord Greene MR) stated that a breach of confidence action will only arise if the information in question has the necessary quality of confidence about it. It must not be something which is public property or public knowledge.

The defendant also referred to the Ministry of Sound case De Maudsley v Palumbo [1996] FSR 44. This was a case in which the claimant contended that he had disclosed to the defendant in confidence an idea for a night club consisting of five features. The defendant disputed that either the parts or the combination of five features had the necessary quality of confidence. The elements relied on were held to be too vague and insufficiently original to constitute confidential information either individually or in combination and the claim failed.

In his judgment Knox J reviewed a number of decisions in this area and summarised the points emerging from them on p456. One point was that the material had to have some "attractiveness" to an end user and "be capable of being realised as an actuality". He traced this element back to the idea expressed by Lord Greene in Saltman that the person whose idea it was had to have used their brain and produced a result which could only be produced by someone going through the same process. The antithesis of the idea being expressed by Knox J and Lord Greene would be a mere aspiration of the kind expressed by the phrase "Wouldn't it be great if…". Or in other words one needs to go beyond simply identifying a desirable goal.

These are all attempts to address the problem of vagueness. It is clear that ideas which are too vague are not protected but one needs to be careful not to take the words Knox J used out of context. In the passage relied on the learned judge said that the element has to be capable of being realised as a finished product. That could mean that a pitch document for a television programme could never be protected by the law of confidence simply because all the details had not been worked out. I do not agree with that (nor do I believe it is what Knox J meant).

The evidence before me distinguished between a pitch document like the deck and a detailed treatment, the latter being a fully worked out explanation of a television programme. The law will not only protect a treatment. A worked out and detailed pitch which includes concrete ideas for a television programme is capable of being protected by the law of confidence as long as the other aspects of the law are satisfied. The fact that it is not as detailed as a full treatment does not mean it is not protectable. On the other hand if it is too vague and unoriginal or both, it will not contain anything with the necessary quality of confidence to be protected.

The defendants referred to the observations of Laddie J in IPC v Highbury Media [2005] FSR 34 concerning whether similarities were or were not indicative of copying and in particular the passage in paragraph [11] concerned with similarity by excision. I agree with the warning sounded by Laddie J that one needs to be careful, in drawing an inference of copying from the existence of similarities, to ensure that one is not simply falling into the trap he describes. On the other hand the fact that two things may be different in various ways does not mean that the elements which they have in common were not the result of copying. Everything depends on the facts and the evidence.

The defendant submitted that in order to succeed the claimants had to prove a widespread dishonest conspiracy to hide that copying and it referred to the summary relating to the principles applied to the assessment of evidence in Bailey v Graham [2012] EWCA (Civ) 1469 at paragraph [47]. I will not set it out here. Since the claimants were acting in person, counsel for the defendant also drew attention to the general rule that if it is to be suggested that the evidence in chief of any witness is false then the witness must be challenged in cross-examination. This included reference to Markham v Zipher [2005] RPC 31, Browne v Dunne (1894) 6R67 and the Australian case Allied Pastoral Holdings v Federal Commissioner of Taxation (1983) 44 ALR 607.

Assessment

In copyright cases it is well established that infringement may be proved by raising an inference of copying which the defendant fails to rebut. Although the legal burden of proof rests always with the claimant, the claimant may raise a strong inference that copying must have taken place by pointing to significant similarities between the claimant's work and the defendant's work and the existence of an opportunity for the defendant to copy. This inference may shift the evidential burden to a defendant to rebut the inference. The defendant may seek to rebut it by proving independent derivation. One may end up testing the cogency of the evidence of independent derivation against the strength of the inference of copying. This logic is capable of applying in some breach of confidence cases. It is in substance the way in which the claimants put their case before me.

I propose to approach the case by considering the inference to be drawn from the circumstances first, then consider Sky's positive case of independent derivation and then look at the matter overall. I will start by considering the ideas embodied in The Real Deal.

The ideas embodied in the deck for The Real Deal

I am sure that the deck for The Real Deal was imparted to Sky in circumstances whereby the receiving party regarded it as confidential. Ms Hollywood explained that she felt that all the meetings she had with any production company were confidential. That was so even though confidentiality was not discussed at the meeting. It was not necessary to discuss it.

I also accept that the deck as a whole has the necessary quality of confidence to be protected by the law of confidential information. It contains a proposal which is worked out it some detail and is capable of being used as a firm basis on which to take a project forwards. It is not merely a set of vague aspirations.

However the fact that the deck as a whole is protectable as confidential information does not help. Sky were not free to publish the deck but that is not what happened. What is alleged to have taken place is that some of the ideas set out in the deck have been taken and used in Must Be The Music. In order to assess this case it is necessary to identify with care what ideas set out in the deck are relied on by the claimants.

In opening the claimants relied on six features of how The Real Deal would work and two branding features of The Real Deal. The eight elements in total are:

(1) the live broadcasts would be finals of the competition in which finalists were selected by audition in two stages;

(2) there would be eight finalists, one to be eliminated each week;

(3) the on-screen panel of judges would be celebrity singer-songwriters, not general celebrities or industry executives;

(4) for the first four shows, competitors would perform covers which they would choose, arrange and perform; from the fifth show on, they would perform their own original compositions, and the emphasis would, therefore, be on singer-songwriters both as contestants and as judges;

(5) the original tracks from week five on would be available for download and chart-eligible while the shows proceeded;

(6) the contestants would be filmed preparing for their performances;

(7) as for the branding features, the presentation emphasised the significance of the title The Real Deal, not casually chosen but intended to mark the emphasis on serious creativity and professionalism; and

(8) coloured lapel-style badges featured throughout the presentation.

I accept that the eight elements are all present in the deck but the list must be treated with care. There are other elements of the show described in the deck which do not appear in this list. The following further elements are also present in the deck:

i) The contestants for The Real Deal were to be selected for audition by invitation only;

ii) The Real Deal would employ off screen judges, the deck naming a record producer and a successful singer-songwriter;

iii) From the fifth show onwards the contestants in The Real Deal were to perform both a cover and an original song. That point is absent from the claimants' elements 4 and 5 above;

iv) The idea of chart-eligible downloads is clearly presented in the deck but they are proposed to be available on the day after the relevant show is broadcast;

v) The prize for the contestants was a record contract;

vi) The badges used in the deck were "branding" badges in the sense that they carried the name "The Real Deal".

I now turn to consider the extent to which the ideas relied on by the claimants either alone or in combination, can be said to have the necessary quality of confidence to be protectable. Mr Wade explained that the emphasis on singer-songwriters as judges and contestants and the downloading proposal are original and key to the concept. In making the point he was realistically not suggesting that the format structure of The Real Deal itself with auditions, live finals and a whittle format were original. They were not. That is in effect elements 1, 2 and 6 as well as some of element 4. Put in the context of the eight elements identified above, Mr Wade's submission is that the key parts are in items 3 and 5 and the part of element 4 emphasising singer-songwriter contestants. I agree.

Elements 7 and 8 are not advanced as parts of the format of The Real Deal itself but as aspects of the contents of the deck which the claimants rely on as having been copied by Sky. They are (at least) said to be indicative of copying of the important elements.

Downloading

I will start with downloading. There is no doubt that the idea of being able to buy recordings of the music played on a music talent show was old. However this case is focused on downloading from online music stores such as Apple's iTunes. Downloading music tracks was a major part of the music industry in 2009/10. Furthermore the major American talent show American Idol had incorporated downloading of tracks before. Thus the mere idea of incorporating downloading into this sort of show was not original in 2009. However there is a point of detail arising from this. The downloads on American Idol were not permitted to enter the relevant music charts. The claimants emphasised that their idea, embodied in the deck, was not merely downloading but chart eligible downloading.

However it was well known in the industry that Simon Cowell, the famous figure associated with the X Factor, wanted chart-eligible downloads during the run of shows in the programme but knew it could not be done. In that respect I prefer the evidence of Mr Smith – who was aware of this – to Mr Mordue who said he was not. The problem, which was well understood, is that chart-eligible downloads create a problem for a show which uses a whittle format. If the songs for all contestants are available for chart eligible downloading from the first live show then the public will be able to rank the popularity of all the acts. The chart eligible downloads remove all the suspense. The defendant pointed out that the proposal for The Real Deal therefore creates this well known problem.

In my judgment, the idea of chart eligible downloading on a music talent show does not, on its own, have the necessary quality of confidence to be protectable in an action for misuse of confidential information. It was a well known idea. The fact it was well known to create a problem when used with a whittle format show does not help the claimants since their idea was for a whittle format show. The claimants contended that this problem would have been sorted out if Sky had accepted The Real Deal pitch during the inevitable work between a pitch and the full creation of a real programme. That may be true but it does not help. The claimants correctly base their claim on the ideas disclosed in the deck.

Singer-songwriters

The other key element of The Real Deal is the emphasis on singer-songwriters both as on-screen judges and as contestants.

Sky contended that this idea was unoriginal as well. They referred to earlier talent shows which featured singer-songwriters as judges and contestants.

It is clear that a number of music talent shows have featured singer-songwriters as judges including a BBC programme called Fame Academy in 2002/03, American Idol in 2008 and a pair of programmes made by Princess in 2007/08 called Mobile Act Unsigned/Orange Unsigned Act. However the claimants emphasised that their idea was to have an on-screen judge panel made up entirely of singer-songwriters, which was new. For example in Orange Unsigned Act, although two judges were singer-songwriters, one was a record industry executive.

It is also clear that a number of music talent shows have featured singer-songwriters as contestants. Again Fame Academy and Mobile Act Unsigned/Orange Unsigned Act are examples. The claimants' response to this point was to point out that shows like Mobile Act Unsigned/Orange Unsigned Act were not primetime television shows. That is correct. Mobile Act Unsigned/Orange Unsigned Act had a very specific edgy style, exemplified by the fact that a number of judges swear on the show, albeit the language is masked out.

I find that using singer-songwriters on a music talent show either as judges or contestants or both are not ideas with the necessary quality of confidence to be protectable. On their own these are not original.

The combination

There are no other individual ideas in the deck which on their own have the necessary quality of confidence but that does not mean the claimants have no rights. A line exists somewhere between the full detail of the deck as a whole, which I have accepted as being protectable, and the individual ideas taken alone, none of which I have accepted. The question is where that line is to be drawn.

The claimants' case is really that the combination of the emphasis on singer-songwriters and chart eligible downloads in a music talent show has the necessary quality of confidence to be protectable.

Even expressed as a pitch rather than a fully worked out treatment, when the ideas are expressed in this broad way I am concerned that they are not sufficiently detailed to be protected. A concrete format proposal is missing. Expressed this way the ideas risk being little more than aspirations.

There is an important connection between The Real Deal's proposals of downloads and a whittle format. That was a known combination albeit it was also known not to work. I am not convinced it would be fair to ignore the whittle aspect of The Real Deal.

Moreover expressed at a very high level, the combination of downloading and singer-songwriters was itself not original. The Mobile Act Unsigned/Orange Unsigned Act programmes had downloading of the winning track after the show and an emphasis on singer-songwriters. However it is true that there are differences of detail between Mobile Act Unsigned/Orange Unsigned Act and The Real Deal.

One might say that the claimants should then rely on the combination of (i) chart eligible downloads during the run of the show, (ii) judges being exclusively singer-songwriters, (iii) contestants being singer-songwriters and (iv) primetime. At this stage I entertain a doubt whether this combination fairly reflects the content of the deck. It is in danger of being a combination created with hindsight cherry picking elements from the deck, rather than a reflection of what the claimants really conceived. However I will suspend judgment on the combination point until I have considered the other issues and return to it at the end.

Comparison with Must Be The Music

The key similarities between the programmes which are relied on are (i) chart eligible downloads during the run of the series, (ii) singer-songwriters, (iii) primetime rather than edgy, (iv) the word "real" and (v) badges. I will deal with each in turn.

Must Be The Music involved immediate chart eligible downloads however it could do so because it did not employ a whittle format. The public vote selected the two best acts from each of three semi-finals to make up a final of six acts. Thus in the final most of the acts had not been pitched against each other before and suspense was maintained. The claimants pointed to a number of occasions in which the term "whittle" had been used in relation to Must Be The Music. This did not help. The question is not what the format is called. The argument is about the nature of the format itself. Thus although the programme Must Be The Music involves chart eligible downloading just like The Real Deal, there is a key related difference in the format.

Another difference of detail is the following. On Must Be The Music the downloading is immediate whereas on The Real Deal the tracks were to be available for downloading on the day after broadcast. The reason for this difference is that it takes an appreciable time to prepare a track for downloading after it has been performed. Thus the deck proposed that the track would be available on the next day. On Must Be The Music the track which was actually available for download had been recorded by the contestants a few days beforehand. That is how it was able to be made available immediately. It was not in fact a recording of the live broadcast performance.

A further difference relating to downloading relates to money. An important element in Must Be The Music was that the profits from the downloads went to the artists and not to Sky. The artists made money from their music. This was part of a general ethos in Must Be The Music to be independent of the record industry and therefore different from the X Factor. In the same vein the prize for Must Be The Music was a cash sum rather than a record contract. This separation from the record industry was a very different idea from proposals for The Real Deal.

When Must Be The Music was launched its downloading element was seen as an original and important idea. In July 2010 the Independent newspaper called the idea "nothing short of genius" and said "It's actually rather surprising no UK talent show had done this before." In August 2010 a Sky press release described the immediate downloads as one of several unique elements in the show. Mr Gray was quoted as describing Must Be The Music as the first show to offer immediate song downloads. A year later the BBC referred to downloading as something "pioneered" by Must Be The Music.

Despite this, at times the witnesses for Sky, particularly Mr Gray himself, appeared not to accept that the downloading element of Must Be The Music was unique or notable. However the press comment about this aspect of the show was supported by the words attributed to Mr Gray at the time and I find it was justified. Mr Gray in the end did accept that Must Be The Music was the first show to include immediate chart eligible downloads.

This is not inconsistent with the fact that the general idea of downloads from a music talent show was not new or original. By avoiding the whittle format Must Be The Music had solved the known problem of chart eligible downloading during the run of the show. By pre-recording the track in advance of the live show, Must Be The Music had found a way to make immediate downloads available. Neither solution derived from The Real Deal.

As regards singer-songwriters, there was a debate whether the three individual judges on Must Be The Music were actually singer-songwriters. All three compose their own original music and there was no dispute that Sharleen Spiteri was a singer-songwriter. However the defendants submitted that Jamie Cullum was primarily a pianist while Dizzie Rascal was a rap artist rather than a singer. I was not impressed with either point. Mr Rascal is the kind of credible, original music oriented artist within the ambit of the idea of singer-songwriter judges advanced in The Real Deal and so is Mr Cullum.

There was also a debate about the nature of the contestants. Sky emphasised that Must Be The Music was open to all in a way that The Real Deal was not. That is true both in the sense that instrumentalists were eligible and in the sense that the auditions were open and were not by invitation only. However as the claimants point out some of the publicity material for the show published by Sky referred to the fact that the acts write and perform their own music. Sky's arguments at trial and the defendant's witnesses never really faced up to this point. The argument and evidence continually focussed on the fact that the programme was open to all. So it was, as Mr van Someren's email in June 2010 recognised. It is true that not all the music on Must Be The Music was original but the fact remains that the claimants make a legitimate point when they point to Sky's own publicity material. I find that Sky placed significant and public emphasis on the fact that the contestants in the semi-finals and the final of Must Be The Music were predominantly artists who wrote and performed their own material. This is a characteristic the semi-finals and final shared with The Real Deal.

The claimants also submitted that like The Real Deal, Must Be The Music was a singer-songwriter based show but aimed at primetime rather than being an "edgy" show like Mobile Unsigned Act. For now I will not concern myself with whether this point was pleaded. It was debated before me. Must Be The Music was not broadcast on a Saturday, it was broadcast at 7pm on a Sunday. That is not as prime a time as The Real Deal Partnership intended for The Real Deal but nevertheless it is clear that Must Be The Music is not an edgy show aimed at the same older teenage audience as Mobile Unsigned Act. It is a mainstream music talent show.

The point on the word "real" is the following. The Real Deal obviously uses the term and consistent with this the deck contained phrases such as "Combining classic, human-interest, Saturday night entertainment with a genuine commitment to real new musical talent, we can win over everyone – viewer and critic" and "The Real Deal, REAL lives, REAL talent, REAL drama, REAL futures the REAL DEAL" (in the deck the words shown here in italics were in plain type but emphasised with colour).

On at least one occasion the term "real" appeared in Sky's marketing material for Must Be The Music. In August 2010 a poster appeared advertising Must Be The Music with the words "Real musical talent judging new musical talent". The claimants submitted this bore striking similarity to the phrase "real new musical talent" which appeared in the deck in the passage quoted above. Sometimes small points can be tell tale signs of copying and are very significant. However this small point is just that. I do not regard it as a significant similarity. "Real" is an apt word to use in the context of the judges on Must Be The Music.

The deck used images of lapel badges bearing the words The Real Deal. Lapel badges appeared on the website for Must Be The Music. They were campaigning badges, used to try and help the artists achieve chart positions for their music. A representative example was a badge marked "Help us get to number 1" which appeared on the website beside the duo Pepper and Piano when they were number 4 in the charts.

Mr Murphy was dismissive about badges. At one stage he suggested there were badges for most of the shows he looked after (120 per year) but he was exaggerating. It is clear that the use of campaigning badges by the team at Sky was regarded by them as a better idea that Mr Murphy's testimony would suggest. Nevertheless it is also clear that the idea of using badges in connection with a television programme is not an original one (c.f. Blue Peter).

The claimants thought that after they complained to Sky about Must Be The Music, the badges disappeared from the Must Be The Music website at least for a few days. They regarded this as an indication that Sky must have recognised there was a problem with the idea having been copied from The Real Deal. However Mr Conway gave a clear explanation for what had happened. The badges were not removed at all. The homepage of the website had a carousel of pages to use and could select which one to display. Some images had badges and some did not. The pages always remained on the website but the carousel system gave prominence to different pages at different times. I accept Mr Conway's explanation. There is nothing in this point.

I think the badges argument is a better point than the "real" point but it is not strong. The lapel badges used for Must Be The Music are not like the branding badges in the deck for The Real Deal. The similarity is simply the idea of badges.

Conclusion on similarities and differences

So far I have not enumerated the differences relied on by the defendant. The main ones relied on are the following: (i) the format structure of Must Be The Music (no whittle etc.) is very different, (ii) the ethos of the show is anti-record industry unlike The Real Deal, (iii) the show is open to all comers, the auditions were not by invitation (iv) the show was open to musicians of all kinds who were free to play what they liked albeit singer-songwriters won through, (v) the detailed elements relating to downloading are different.

Some of the points made by the claimants are very weak but at the heart of the claimants' case is an argument based on the timing, including the fact that the deck was in Sky's possession for many months, coupled with the major points of similarity relating to downloads and the emphasis on singer-songwriters as judges and contestants. Even though it is true there are a number of differences between the deck and the show as broadcast, without an explanation from Sky, I would not be prepared simply to dismiss the inference that Sky derived ideas from the deck for The Real Deal. It is perfectly obvious why the claimants are concerned in this case. However this inference cannot be taken too far. The inference has some substance but it is not at all overwhelming.

Sky's positive case of independent derivation

Sky advanced a positive case explaining how Must Be The Music came to be developed and how it had nothing to do with The Real Deal. In summary Sky contended that Must Be The Music arose in the following way:

i) Clare Hollywood worked as a commissioner at Sky at the material time. She was the only person who saw the deck for The Real Deal. In particular, despite indications in emails from Ms Hollywood to the contrary, the other key people at Sky, Duncan Gray and Stuart Murphy never saw the deck during all the time it was at Sky in 2009 and into 2010.

ii) In late 2009 Stuart Murphy arranged for an invitation to be put out inviting submissions for a "Battle of the Bands" type show. This so called entertainment tender was managed by Clare Hollywood.

iii) Meanwhile Princess Productions had a show called Got to Dance. It was a dance talent show made by Princess and broadcast by Sky. It was first broadcast in December 2009. It was a success. The show had core values of authenticity and judges who had success from their own performing talent.

iv) Princess came up with an idea for a music talent show called Got to Sing to expand the Got to Dance brand and apply its values to music. Two features of Got to Sing at this stage stand out. First, it was based on an idea for an "app" which could be used on Facebook or smart phones to allow anyone to record themselves singing. That is how people would enter the competition. Second, the context and ethos of Got to Sing related to what was then an anti-record industry feeling associated with a backlash against Simon Cowell and the X Factor. For example the X Factor had been dislodged from its expected Christmas No. 1 slot in the UK singles chart for 2009 by a band called Rage Against The Machine.

v) Using contacts at a very senior level in Sky (given the common partial ownership of and involvement in Sky and Princess by the Murdoch family), Princess pitched Got to Sing to Sky in January 2010. The key meeting was on 20^th January 2010 and involved amongst others Elisabeth Murdoch of Shine, the company which owned Princess, Henrietta Conrad and Lucas Green of Princess, and Stuart Murphy and Duncan Gray of Sky. Stuart Murphy regarded it as a strong proposal. He expressed enthusiasm for the project but was unsure about elements of it, such as the app and the name.

vi) In the beginning of February 2010 Clare Hollywood, Duncan Gray and Stuart Murphy got together to discuss the ideas received under the entertainment tender. Clare Hollywood included The Real Deal as one of the proposals to be considered. A very large number of treatments had to be gone through. Some were considered for only a few seconds. None of Clare Hollywood, Duncan Gray nor Stuart Murphy could recall actually discussing The Real Deal. A shortlist of ideas to consider further was compiled after the meeting. It is in an email dated 11^th February 2010. It did not include The Real Deal. On 12^th February Clare Hollywood emailed Tim van Someren to tell him that The Real Deal was not being pursued.

vii) After a further mini-tender process which included five production companies coming up with different takes on a broad and varied music/band based show on the general anti-X Factor premise, Sky's decision to go ahead with Princess was made in late March 2010. The decision was made by Duncan Gray and Stuart Murphy.

viii) At this stage the ideas for the Princess show included the idea that it would be open to all genres, soloists and groups, the idea that the acts would make a profit and not the record company and the idea of being Rage Against The Machine vs X Factor. The team at Princess, particularly Lucas Green, had relevant experience both on Got to Dance and Mobile Unsigned Act. The latter had involved downloads and Lucas Green had a contact at iTunes which allowed him to play a key role developing this aspect of the show.

ix) No-one at Princess ever saw the deck or heard anything about the claimants' ideas.

x) There was a discussion about the name of the show in March /April 2010 involving Stuart Murphy. Among possible names which were discussed was "The Real Deal". The idea for that name did not come from the claimants. Other names discussed were "Can't Stop The Music", "Thank You For The Music", "Let The Music Play" and "The Music In Me".

xi) Stuart Murphy took an interest in the choice of judges for Must Be The Music. In line with the Got to Sing pitch, Sky wanted a similar panel to the one in Got to Dance. That is how the three judges were chosen. It was independent of The Real Deal.

xii) The use of campaigning badges and the wording of a poster incorporating the word "real" were derived independently of The Real Deal by Mr Conway (badges) and Mr Goodwin (poster).

xiii) The auditions were open to all and were not confined to singer-songwriters. The fact that the majority of artists in the live semi-finals were performing original music was a consequence of the choices of the judging panel in selecting them.