13 March 2014

Real Deal or no Real Deal: Can you protect your pitch as confidential information?

It's a familiar concern. You pitch an idea to a client or investor, only to receive a polite rejection: but what's then to stop the same client or investor taking that idea forward with the help of third parties?

This was what a consortium of entertainment industry professionals felt had happened with their idea for a music talent show called The Real Deal. The concept of the show, as encapsulated in a deck of Powerpoint slides, was pitched to Sky in 2009 as an anti-X Factor format, involving real singer-songwriter contestants and judges, and chart-eligible downloads of the performances.

Sky rejected the proposal in February 2010. Less than 6 months later Sky was publicising its new talent show Must Be The Music, whose features included songs available for immediate download, a panel comprised of Jamie Cullum, Dizzee Rascal and Sharleen Spiteri, and with a majority of the artists selected for the semi-finals performing their own compositions.

Two of the architects of The Real Deal suspected their idea had been copied and commenced proceedings for misuse of confidential information.  

Giving judgment this week, Mr Justice Birss ruled that The Real Deal slide deck was disclosed to Sky in circumstances in which they would have realised it was confidential (even though it would appear the slides were not expressly marked as "confidential"). Moreover, the judge accepted that the deck as a whole had the necessary quality of confidence to be protected by the law of confidential information.

However, the judge found that the key ideas contained in the deck on their own were not original, and even in combination, in the absence of a concrete format proposal they risked being little more than aspirations.

Moreover, although Sky might have had the opportunity to derive its ideas for Must Be The Music from the deck for The Real Deal, the judge accepted the evidence put forward by Sky that in fact it had developed Must Be The Music independently.

So a pitch document or Powerpoint slides can be protected as confidential information. But as the claimants in this case found out, while you may suspect your confidential information has been misused, proving it is another matter.

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