A claim by the co-creators and producers of a proposed TV show have failed in their claim against Sky TV, alleging format copying. The claim was brought as a breach of confidence claim over an idea for a music talent show.

The claimants in the case came up with the idea of a show called The Real Deal featuring singer-songwriters and with the public able to by songs by digital download. The show was pitched to Sky, but not commissioned. Later the same year Sky TV broadcast a show called Must Be The Music. This had been commissioned by Sky following a tender to which Princess Productions had responded. The show went through a number of iterations from pitch (when it was called Got to Sing), to final format. The claimants alleged that there were a number of similarities between Must Be the Music and The Real Deal, such that Sky must have been consciously or subconsciously influenced by the confidential pitch for The Real Deal.

The Judge found that although there were similarities between the two shows, and the format was confidential information, Sky had shown that the elements of Must Be The Music had been created independently. The Court of Appeal declined to interfere with the findings of the Judge, based as they were on evidence from a number of witnesses, and his overall assessment of all the aspects of the case.

The case is a reminder that breach of confidence in terms of copying does not need to be deliberate – the copying could have happened by virtue of subconscious memories of seeing the confidential information.

Both courts said it was not entirely clear how a case should be analysed where it is not alleged that the format was copied in its entirety, but rather that a series of elements were copied, which overall is alleged to amount to format copying in breach of confidence. However, neither the trial judge nor the Court of Appeal felt it necessary to set out what the proper approach should be, so there remains some uncertainty in this area of law. In this case the Judge looked at each individual element before looking at combinations of them.

Cases such as this can be tricky for both sides. The claimants clearly felt the similarities were too great to be a coincidence. Indeed one person to whom they had pitched the idea at another company congratulated them when Must Be The Music was broadcast as he assumed it was the same show. Broadcasters will want to bear in mind that such copying can be subconscious. However, in this case, Sky was able to show enough evidence of the independent development of Must Be The Music to persuade the Judge to decide in its favour.