PROTECTING IDEAS - IT'S A QUESTION OF CONFIDENCE

The article below was first published in ScreenDaily by Emap on 14 October 2010.

Don’t allow others to rip off your ideas when you can take some simple steps to protect yourself! Pamela Forte, media lawyer at Forte Law, offers some practical tips on safeguarding confidential information.

It shouldn’t happen but it does and we’ve all heard the stories. The producer, whose development pitch is rejected by a broadcaster, discovers twelve months later that the commissioner has set up his own production company and is developing a project suspiciously like the one she pitched. The company looking for co-production finance finds out that its former co-production partner is hawking its treatment round financiers following the break-down of negotiations. As a media lawyer, I’ve heard more of these stories than most and the question I am most frequently asked over a soggy bruschetta at media gatherings is ‘How can I stop someone else ripping off my idea?’

The short and truthful answer is you can’t. It’s a business risk which you can’t eliminate entirely. However, you can manage and reduce the risk by a combination of practical and legal measures.

The main difficulty in protecting ideas against copying and misuse is that there is no copyright in an idea. The law of copyright in England and Wales protects only certain categories of ‘works’ which have been recorded in some form rather than the ideas embodied in the work. A treatment may be protected by copyright as a literary work but this only gives the owner of it the exclusive rights to copy and exploit that particular literary work and prevent others from doing so. If another writer comes along and independently creates a new treatment based on the idea contained in the original treatment there will be no infringement of copyright.

So if your idea isn’t protected by copyright what legal protection do you have if someone walks off with it? In this situation your idea may be protected under principles of common law or equity which have evolved over time through decisions of the courts. Broadly, the law provides protection for confidential information which has been disclosed to third parties where two conditions are satisfied. The information must be inherently of a confidential nature and it must have been disclosed, expressly or impliedly, in confidence.

In the context of ideas and treatments for films there will generally be no problem with satisfying the first condition but in order to avoid any argument as to whether or not information was imparted to a third party in confidence it is best to ensure that, wherever possible, a confidentiality or non-disclosure agreement is signed before the idea is disclosed. As well as putting beyond doubt the fact that the relevant idea was disclosed in confidence, a confidentiality agreement creates a contractual obligation of confidence which, if breached, will give rise to an action for breach of contract.

How then, in practical terms, should you go about protecting your ideas? I suggest the following:

1. Make sure all ideas, treatments and outlines are recorded in writing and marked with an appropriate copyright notice in the form © [Name] [year]. All rights reserved. While the copyright notice isn’t essential for copyright protection in England and Wales and won’t serve to confer copyright protection on the idea embodied in the relevant treatment or outline, it does convey the message that you are serious about protecting your intellectual property.

2. Where the circumstances and your bargaining position allow, ensure that all third parties sign a confidentiality agreement before you disclose your idea to them. Realistically, major financiers and broadcasters are not going to sign confidentiality agreements prior to receiving submissions (and may indeed ask you to sign a submission agreement). This is understandable when you consider the number of submissions they receive and the risk that they will subconsciously copy an idea or develop an idea which, although original in the mind of its creator, is strikingly similar to another idea which may have been submitted and rejected. But when you can insist on it, a confidentiality agreement not only protects your legal position in the case of unauthorised disclosure of your idea but concentrates the mind of the person asked to sign it and demonstrates your professionalism in managing your intellectual capital.

3. Above all, take care that ideas, treatments and outlines are not disclosed more widely than is necessary to seek development interest/finance. It is far better to prevent confidential information from coming into the hands of third parties in the first place than to rely on legal remedies for its misuse!

Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Pamela previously worked for 16 years as an in-house lawyer at S4C where she gained extensive experience in film and television financing, production and distribution. Pamela contributes regularly to media and legal journals and is noted in Chambers Directory 2011 as a media and entertainment law expert.

Disclaimer: The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular situation or agreement.

Copyright © Forte Law 2010. All rights reserved.

COLLABORATING ON FILM DEVELOPMENT – WHY TRUST DOESN’T COME INTO IT

The article below was first published in ScreenDaily by Emap on 1 March 2010.


Media lawyer, Pamela Forte of Forte Law, explains why trust is no substitute for a legally binding agreement when it comes to collaborating on feature film development material.

If I had a tenner for every time someone’s said to me “We don’t need an agreement – we trust each other” I could buy a small Caribbean island. And the area of film production where this occurs most frequently is in the development stage.

You know how it is. You may be a producer or director working in collaboration with a writer or another producer/director. You’re working together on a treatment/first draft script. You feel a tad uneasy about the copyright and rights situation but it’s not worth getting an agreement drawn up at this stage, is it? Plenty of time to sort out the legals when you get financiers on board and, hey, you trust each other don’t you?

I can never understand the logic of this. So the time to enter into an agreement is when you don’t trust each other? I’ve done both types and, believe me, the ones where the trust has gone out of the relationship take longer and hit your legal fees budget harder. Financiers and the money they bring to the table, welcome though they are, can often show up the cracks in relationships built on the most solid of foundations. At this crucial stage you don’t want to discover that the person you’re collaborating with has an entirely different view to you as to the direction the project should take.

Far from damaging trust, entering into an agreement before the collaboration commences builds trust. It ensures you and your collaborator are clear as to the expectations that you both have in respect of issues such as ownership of resulting copyright works and the basis upon which these may be further developed and/or exploited by you together or individually. Having an agreement in place before you approach a financier will also underline your professionalism and demonstrate your attention to legal detail.

Convinced? If so, what do you need to cover off in the agreement at this stage? Here are a few issues you might want to think about:

Ownership of any existing material. This might include any outline, treatment, etc.on which the collaborative work is based. Is it owned by one or both/all of the collaborators? Have any necessary rights been acquired from third parties?

Ownership of copyright in the resulting copyright works and the proportions which each party will hold. Copyright can be held in any proportions not just 50:50. Holding a nominal share of the copyright is a good way of ensuring that you won’t be cut out of the production at a later stage without acceptable terms being agreed.


Waiver of moral rights. Financiers will invariably require moral rights to be waived and it is preferable for the parties to agree specific contractual provisions in place of the rights comprised in moral rights.

Licence/consent to exploit jointly owned rights in specified ways. Where the copyright is jointly owned it may be useful for the parties to provide advance consent to specified forms of exploitation.


Rights of owner of any existing material to exploit that material in ways which do not compete with the collaborative work. For example, if the existing material is a play its author may wish to reserve the exclusive right to exploit live stage rights, radio rights etc.

Warranties and indemnities. (Originality, non-infringement of third party rights etc.)


Provisions which will apply if a film is produced based on the collaborative work. Depending on the nature and circumstances of the collaboration these may include provision for the parties to have an ongoing role in the production and a share of net receipts as these may eventually be defined in respect of the film. These provisions need to be drafted carefully to achieve the outcome of protecting the parties’ position while ensuring there is sufficient flexibility to meet financiers’ requirements.

So the next time you’re planning to proceed on trust alone just ask yourself - if you and your collaborator wrote down your expected position on the above issues would your answers be the same? Time to get your agreement down on paper?

Pamela Forte established Forte Law, a media and entertainment law practice, in 2007. Pamela previously worked for 16 years as an in-house lawyer at S4C where she gained extensive experience in film and television financing, production and distribution including structuring complex international co-productions involving treaty finance. In 2009 Pamela lectured on copyright and film related issues at Newport University’s International Film School and she contributes regularly to media and legal journals. She is recognised in Chambers Directory 2010 as a media and entertainment law expert.

Disclaimer: The points made above are intended as general guidelines and should not be regarded as a substitute for legal advice on any particular agreement.

Copyright © Forte Law 2010