Fraser v Thames Television Ltd
| Jurisdiction | England & Wales |
| Date | 1983 |
| Year | 1983 |
| Court | Queen's Bench Division |
Confidential Information - Original idea - Oral communication - Original idea for T.V. series - Oral communication in confidence - Whether recipient at liberty to use idea for own benefit - Contract - Implied term - Negative covenant - Contract for T.V. series and services - Originators of idea to act in series - Other actresses employed - Whether covenant to be implied that other actresses not to be employed - Whether breach of covenant
In 1973 three actresses, the second plaintiffs, formed a rock group named “Rock Bottom.” The first plaintiff, who assisted in the formation of the group, was their composer and manager. By December 1973 the plaintiffs had developed a well-formed idea for a television series based on the group of which the essentials were that the series (1) would be partly based on the actual experiences of the members of the group and partly fictitious, the balance between fact and fiction to depend on the writer of the series; (2) would highlight the unusual features of a three-girl rock group, where each of the members was an established actress with a life of her own; and (3) would portray the formation of the group and the members' subsequent experiences, focussing on the group and the members' individual lives and highlighting the contrast between their collective character as members of the group and their separate characters outside it. In January 1974, the idea was orally communicated in confidence by one of the plaintiffs with the other plaintiffs' consent, to the second defendant (“the scriptwriter”) who was asked if he would be interested in writing the proposed series. Thereafter, the scriptwriter, with the plaintiffs' consent, communicated the idea to the third defendant (“the producer”). The first defendant television company (“Thames”) were also made aware of the plaintiffs' idea. At all material times the defendants were aware that the idea belonged to the plaintiffs and had been communicated to the scriptwriter in confidence; and that it was envisaged that the second plaintiffs would take part in the proposed series as actresses with the first plaintiff as their composer. At a meeting held on October 4, 1974, Thames told the plaintiffs that they intended to ask the scriptwriter to write a first script on which they and the plaintiffs would have to decide whether or not to proceed with the whole series of six episodes. The plaintiffs orally agreed, inter alia, that until December 31, by which time Thames expected to have made their decision, they would remain silent with regard to the idea; that they would not feature in any competing television comedy or drama as a group during the option period; and that if they decided not to proceed with the series they would allow Thames to make the series with other actresses. There was no stipulation in the agreement that the members of the group would agree to keep themselves free of other commitments during the making of the proposed series. Some, but not all, of the terms agreed at the meeting were confirmed in a letter from Thames dated October 16 and countersigned by the first plaintiff as “(Manager) For and on behalf of the Rock Bottom group.” The option contract was subsequently extended until Thames decided whether or not to proceed with a series. In January 1975, one one of the plaintiffs, L., was engaged to appear in a theatre production of a musical which was due to open in April 1975. Subsequently, Thames and the plaintiffs decided to proceed with the series. However, Thames were unwilling to make arrangements to work around L.'s commitment to the musical and while the plaintiffs were making efforts to avoid her commitment, they decided to offer the parts in the series to other actresses. In 1976, a television series using the plaintiffs' idea and written and produced by the scriptwriter and producer respectively, was made and transmitted by Thames in six episodes using actresses other than the members of the group. A second similar series of six episodes was subsequently transmitted in 1977. None of the defendants had sought the plaintiffs' consent to the use of the idea for the series which was transmitted under the title “Rock Follies.”
On the plaintiffs' claim, inter alia, for breach of confidence against the three defendants and for breach of contract against Thames:—
Held, giving judgment for the plaintiffs, (1) that although the first plaintiff signed the letter of October 16, 1974, as manager for and on behalf of the group, the signature was not conclusive of his acting solely as agent for the second plaintiffs but, in the light of the surrounding circumstances, he was a party to the essentially oral option contract entered into in October; and that, since he was a member of the group and a joint owner of the idea for the series, he was a party to the proceedings with a right to sue and not merely the second plaintiffs' agent (post, p. 926A–C).
(2) That where the oral communication of an idea was made in confidence, the recipient of the information was under an obligation not to use the idea without the maker's permission, provided that the idea was original, clearly identifiable, of potential commercial value and sufficiently well developed to be capable of realisation; that in the circumstances the scriptwriter owed to the plaintiffs an obligation of confidence in relation to their idea since it satisfied those criteria and had been communicated to him in confidence and, since the producer and Thames knew that the idea belonged to the plaintiffs and had been imparted to the scriptwriter in confidence, they were also under an obligation of confidence; that each of the defendants was in breach of his obligation respectively, in making and transmitting, writing, and producing the series based on the plaintiffs' idea without obtaining the plaintiffs' consent (post, pp. 935D–E, G–H, 936A, D–F, 937A–B, E–F, F–G).
(3) That the plaintiffs and Thames had entered into a contract appertaining both to the plaintiffs' idea for the series and to the services of the group; that a negative covenant was to be imported into the contract that Thames would not make the series using other actresses if the second plaintiffs agreed to perform in it; and that, accordingly, Thames were in breach of contract in failing to offer the second plaintiffs parts in the series and in making the series based upon the plaintiffs' idea using other actresses (post, pp. 926F–H, 927B, 928G).
The following cases are referred to in the judgment:
Albert (Prince) v. Strange (
Bagge v. Miller [
Bickerton v. Burrell (
Carl Zeiss Stiftung v. Herbert Smith & Co. (No. 2) [
Coco. v. A.N. Clark (Engineers) Ltd. [
Donoghue v. Allied Newspapers Ltd. [
Fisher v. Marsh (
Franchi v. Franchi [
Fraser v. Edwardes [
Gilbert v. Star Newspaper Co. Ltd. (
Kelly v. Cinema Houses Ltd. [
Marshall (Thomas) (Exports) Ltd. v. Guinle [
Moore v. Edwardes [
Nichrotherm Electrical Co. Ltd. v. Percy [
Phipps v. Boardman [
Rayner v. Grote (
Rees v. Melville [
Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (
Schmaltz v. Avery (
Seager v. Copydex Ltd. [
Seager v. Copydex Ltd. (No. 2) [
Smith v. Morgan [
Sutton Vane v. Famous Players Film Co. Ltd. [
Talbot v. General Television Corporation Pty. Ltd. [
Tudor Marine Ltd. v. Tradax Export S.A. [
The following additional cases were cited in argument:
Fairlie v. Fenton (
Fraser v. Evans [
Printers and Finishers Ltd. v. Holloway [
Sayers v. Collyer (
Smith v. Morrison [
Stevenson Jordan & Harrison Ltd. v. MacDonald & Evans (
ACTION
The first plaintiff, Donald Alexander Fraser, was a composer of classical and popular music and the second plaintiffs, Gabrielle Elizabeth Brown, Diane Shirley Maria Langton and Judith Annabel Leventon, were actresses. At all material times, the first defendants, Thames Television Ltd. (“Thames”), were television programme contractors in the London area. The second defendant, Howard Schuman (“the scriptwriter”), was a playwright who was a friend of Mr. Fraser and Miss Leventon as a result of his collaboration with them in several musical projects. The third defendant, Andrew Brown (“the producer”) was a producer of television plays and a friend of the scriptwriter.
In 1973 the second plaintiffs formed a rock group entitled “Rock Bottom” with the assistance of the first plaintiff who acted as their composer and manager. By December 1973, the plaintiffs had developed a well-formed idea...
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