|
|
|
|
|
Email: copyright.theft@btopenworld.com |
(SUBJECTS CONSIDERED BY JUDGE)
Equity - Breach of confidence - Damages - Use of information obtained in confidence - Actresses developing idea for television series in which they proposed to appear - Actresses disclosing idea orally and in confidence to defendants Defendants using idea to create television series with other actresses - Test to be applied to determine whether a breach of confidence - Whether law relating to protection of confidential information extending to protection of an idea communicated orally.
Contract - Implied term - First refusal - Agreement giving
defendants option to use plaintiffs' idea for television series
in which plaintiffs wished to appear - Agreement providing that
if plaintiffs unable to appear in series defendants entitled to
produce series with other actresses -
Defendants using other actresses to produce series without first
offering parts to plaintiffs - Whether negative covenant to be
implied into agreement that if plaintiffs willing to appear defendants
would not use plaintiffs' idea for series without using plaintiffs
as actresses - Whether defendants' failure to offer parts to plaintiffs
A BREACH OF CONTRACT.
In 1973 the second plaintiff, three female actresses, formed a rock group with the assistance of the first plaintiff~ who was their manager and also their composer. The actresses and the manager developed an idea for a television series which was to portray the formation of a three-girl rock group and the members' subsequent experiences.
The series was to be part fact and part fiction, the factual part being based on the actresses' own experiences, and was to focus on both the group and the individual members' lives to contrast their collective character with their individual characters.
The three actresses intended that they would appear in the series as the three singers and that their manager would compose music for the series.
Oral discussions took place between the actresses, the manager, a representative of the first defendant a television company (Thames), the second defendant, the scriptwriter, and the third defendant, the producer, in which the idea for the series was disclosed to the defendants in confidence with a view to its realisation.
As a result of those discussions and in consideration of payment by Thames of £500 the actresses and the manager granted Thames oral option ~ which was later confirmed in writing.
The confirming letter stated that Thames was to 'acquire an option on your services in connection with a possible new series', that the actresses were to have first refusal should the series be proceeded with, and that if they declined the offer Thames Thames was to have the right to make the series with three other actresses.
1) Whose was the original idea at the outset?
His Lordship found that from the formation of the Rock Bottom group in the summer of 1973 Mr Fraser, with the assistance of Miss Leventon, was developing his own idea for a television series and that by December 1973, the date of the first meeting with Mr Rosenthal, they had developed a well-formed idea for a television series, based on the Rock Bottom group, whose essentials were:
( I ) that the series should be part fact and part fiction, the fact part being based on the actual experiences of the plaintiffs; the balance between the two would depend on the approach of the chosen writer;
(2) it would highlight the unusual feature of a three girl rock group, where each of the three girls was an established actress of wit and intelligence with a life of her own;
(3) it would portray the formation of the group
and their subsequent experiences, trials and tribulations, focusing
both on the group as such and on the girls' separate lives, and
bringing out the contrast between their collective characters
as members of the group and their separate characters outside
it.
2) What knowledge did Miss Verite Lambert (Head of Drama at Thames Television) and Mr Brown have of the authorship of the idea?
His Lordship found that Mr Schuman knew that the idea originated from the plaintiffs from his meeting with Miss Leventon on 22nd January 1974; that Mr Brown learnt of that from Mr Schuman shortly afterwards; and that Miss Lambert learnt of that either from Mr Schuman or from Mr Brown or from both at the latest by the date of a Kings Road concert on 14 July and possibly as early as 14 May.
3) What were the terms of and who were the parties to the contract of October 1974?
His Lordship set out the letter of 16 October to the plaintiffs from Thames:
16th October 1974.
(TO) The Rock Bottom Group - c/o Fenette Music - 8 Horse and Dolphin Yard, W I V 7LG
ATT: DON FRASER ESQ.
Dear Mesdames
We write to confirm the understanding between us whereby in consideration of the payment by us to you of the agreed sum of FIVE HUNDRED POUNDS we shall acquire an option on your services in connection with a possible new series of programmes to be undertaken in 1975 during the period commencing from the date hereof until 3Ist December 1974.
It is understood and agreed that: I) During the aforestated period you (i.e. THE ROCK BOTTOM GROUP consisting of the three artistes GAYE BROWN, DIANE LANGTON and ANNABEL LEVENTON) will not appear on television in any drama production(s) or in any situation comedy series.
2) Should THAMES 'decide to proceed with the new series project you will have first refusal in connection therewith but in the event of your deciding against such a project your decision shall in no way jeopardise THAMES' right to undertake the series with three other artistes.
3). In the event of your participation in the said series such participation shall be on terms to be negotiated on the further understanding that such terms shall not be in excess of what would be deemed to be a fair fee for the services of the said artistes in a television drama production at the time of negotiation. We shall be obliged if you will please confirm your agreement with the foregoing by signing and returning to us the enclosed copy hereof.
His Lordship held that that letter did not
fully or accurately set out the terms of the
contract, which was essentially oral.
His Lordship found that at the meeting of 4 October which preceded the sending of the letter of I6 October Miss Lambert expressly sought, and was expressly granted, as a contractual term, permission to go ahead with the series if the girls decided not to take part. Such a request presupposed that the idea was the plaintiff~ and could not be used by Thames with other actresses without the plaintiffs' consent. His Lordship referred to the last three and a half lines of para 2 of the letter of 16 October: 'in the event of your deciding against such a project'.
His Lordship stated that had the contract been limited to the girls' services as actresses, he would have expected the next stage of any discussion to be handled not by Mr Fraser, but by the girls' agents. On the other hand the arrangement that Mr Fraser should act was fully appropriate to an agreement of the wider scope for which the plaintiffs contended. His Lordship further found that Miss Lambert did not say, let alone insist, that during the making of the series the three girls must keep themselves free of other engagements.
4. Was the option reinstated in February 1975 ?
His Lordship found that various telephone conversations between Mr Fraser and Miss Sadler of Thames, acting on Miss Lambert's instructions, and all the subsequent conduct of the parties on both sides up to the breakdown between the two sides was consistent with the option having been reinstated on 7 February.
5. What are the rights and wrongs about the controversy about 'A Little Night Music'?
His Lordship stated that the factual issue was whether Miss Langton's appearance in 'A Little Night Music' effectively precluded her taking a part in the series, as the defendants contended or whether, as the plaintiffs contended, Thames could or should have worked round Miss Langton's commitment to 'A Little Night Music', or at least made an effort themselves to secure some other workable arrangement, such as her temporary release from the show during the making of the series. His Lordship found that Thames never made any attempt themselves to negotiate direct with the management of 'A Little Night Music' for either a 'working-round ' arrangement or an arrangement for Miss Langton's release.
His Lordship referred to evidence by Miss Lambert that she did not go to the management of 'A Little Night Music 'because her patience was exhausted, and found that by May 1975 Miss Lambert was not averse to a breakdown with the plaintiffs and was not prepared to do anything herself to avert it.
His Lordship found that Thames a could and should have taken a hand themselves by a direct approach to the management of 'A Little Night Music' to seek Miss Langton's release and should have explored the alternative of a satisfactory 'working-round' arrangement, difficult though that would have been.
(6 and 7). Was the plaintiffs' idea used in Rock Follies and were characters in Rock Follies derived from the real life characters of the plaintiffs ?
His Lordship held that there were very substantial similarities between the plaintiffs and characters portrayed in Rock Follies, that the similarities were far more extensive and significant than mere trace elements and that the similarities could not have occurred otherwise than through Mr Schuman seeking to portray the actual characters of the three Rock Bottom girls and Mr Fraser on the basis of his knowledge and observation of them.
[His Lordship continued:]
All these considerations drive me to the conclusion
that the Rock Follies series as a whole, and especially the first
two episodes, were substantially based on the characters and actual
experiences of the Rock Bottom girls and Mr Fraser. This was part
of the plaintiffs' own idea. Furthermore, all the other aspects
of the plaintiffs' idea feature in the series, namely an all-girl
rock group made up of girls of very different character and social
background with well-established careers in the theatre (or at
least in show business), the formation of the group and their
experiences as a group, interwoven with their contrasting private
lives.
"Consequently, I hold that Rock Follies did use the plaintiffs' idea." (said the Judge)
[There then followed His Lordship's analysis of other submissions
about who was a party to what and whether Mr Fraser, - the composer
and Manager of the Rock Follies Group - was entitled to be a Party
to the Case etc]
More - click arrow for the next page